A Research Group of the International Association of Constitutional Law, dedicated to the study of Social Rights/
Un Groupe de Recherche de l’Association Internationale de Droit Constitutionnel portant sur l’étude des Droits Sociaux

Our Group

Our group has been founded on 9/12/2010 in the framework of the VIII Congress of IACL, on the common initiative of Victor Bazan and Sandra Liebenberg.

Its main aim is to develop a network and a forum for constitutionalists interested in social rights from countries throughout the world. Among its future activities will be, inter alia, the development of comparative research projects on topics to be decided collectively, advocacy and public Interest litigation on social rights issues and further involvement to related activities of IACL.

Subject:In September 1997 the applicants’ two sons/grandsons,
born in 1987 and 1994, were placed by court order in the “Il Forteto”
children’s home, where – as the national court was aware – two of the principal
leaders and co-founders had been convicted of sexual abuse of three handicapped
people in their care. Prior to his placement in the home, the eldest boy had
been a victim of sexual abuse by a paedophile social worker.

Summary of the Decision:

I. Facts of the case

The first
applicant, Dolorata Scozzari, also acts on behalf of her children, G., aged
thirteen and M., aged six. The second applicant, Carmela Giunta, is the first
applicant's mother. In view of the dramatic situation in the first applicant's
home, a situation that had been largely brought about by the violence of the
first applicant's husband towards both her and the children and the fact that
the elder child had been subjected to paedophile abuse by a "social
worker", the Florence Youth Court suspended the first applicant's parental
rights and ordered the children's placement with the Il Forteto community. Two
of the main leaders of that community had been convicted in 1985 of the
ill-treatment of three handicapped people who had stayed there. The case-file
showed that the two men continue to hold positions of responsibility within the
community and are actively involved in the proceedings concerning the first
applicant's children and in the arrangements for looking after them. On 9
September 1997 the Youth Court ordered that the first applicant should have
contact with the younger child only, but she was prevented from doing so in
practice. Subsequently, it ordered that she should receive counselling in
preparation for contact with the younger child. Visits that had already been
arranged were, however, suspended in July 1998. Subsequently, following the
Youth Court's decision of 22 December 1998 to allow contact with both children,
the first applicant was allowed to visit them for the first time on 29 April
1999. A second visit took place on 9 September 1999, but social services
decided to suspend all visits thereafter. The first applicant, who purported
also to be acting on behalf of her children, complained of infringements of
article 8 ECHR in that her parental rights had been suspended, her children had
been taken into care, the authorities had delayed before finally allowing her
to see the children, too few contact visits had been organised and the
authorities had placed the children at Il Forteto. The second applicant also
alleged a violation of article 8, complaining that the authorities had
discounted the possibility of her being given the care of her grandsons and
delayed organising contact with them.

The European Court of Human Rights found that the two
leaders played a “very active role” in the care of the two children and that
there had been a violation of Article 8 (right to respect for private and family
life) of the Convention, concerning, among other things, the uninterrupted placement
of the boys in “Il Forteto”.

II. The basic considerations of the case

Strip searches,
including rectal examinations, carried out for security reasons have not been found
to be incompatible with Article 8 although such measures will normally
constitute an interference with respect for private life. However,
interferences of this kind will usually be justified bearing in mind the
reasonable and ordinary requirements of imprisonment in which wider measures of
interference might be justified than for persons at liberty in pursuance of the
aims of preventing crime and disorder. In McFeeley v. the United Kingdom, for example,
frequent strip searches were found to be required by the exceptional security
requirements of the Maze prison in Northern Ireland, where experience showed
dangerous objects had been smuggled in. The Commission found that while the
circumstances were personally humiliating they were not deliberately degrading
particularly given the lack of physical contact and the presence of a third
officer to avoid abuse.

Furthermore, the
extent to which private sexual conduct can be regulated has been examined
recently by the Court. The applicants in Laskey, Jaggard & Brown v. the United
Kingdom were prosecuted for engaging in group sado-masochistic activities,
which they argued violated their right to private life under Article 8.
Although the Court questioned whether such actions could be considered as an
aspect of private life under that provision, it was not necessary for it to
decide the matter as, in any event, the prosecution of acts such as assault and
wounding, notwithstanding the consent of the adult victims, was justified for
the aim of the protection of health, having regard to the extreme nature of the
acts concerned.

However, in ADT
v. the United Kingdom the Court considered whether the prosecution of the
applicant for recording his sexual activities on video tape constituted an
unjustifiable interference with the right to respect for his private life.
While the Court agreed with the Government that, at some point, sexual
activities can be carried out in such a manner that state interference can be
justified, it went on to find that this was not such a case. In particular, it
was relevant that the applicant was involved in sexual activities with a restricted
number of friends in circumstances in which it was most unlikely that others
would become aware of what was going on. Notwithstanding that the activities
were recorded on video tape, the Court found it relevant that the applicant was
prosecuted for the activities themselves and not for the recording or for any
risk of it entering the public domain. The activities were thus genuinely
“private”, which means that a narrow margin of appreciation applies as in other
cases concerning intimate aspects of private life. As a result of these
factors, the Court concluded that both maintaining the legislation in force and
prosecuting and convicting applicant were disproportionate to the aim of
protecting morals and the rights and freedoms of others under Article 8 para.
2.

Adjudication method: Reference to domestic law of Italy in conjunction with the reference to
international law.

Reference to other constitutional courts: No.

Reference to International Law: Articles 3, 6, 36 and 46 of European Convention of
Human Rights.

Relation with former jurisprudence/Innovative elements: The Court has followed its traditional adjudication
method. It referred to former jurisprudence, i.e. B. v. the United Kingdom, Eriksson
v. Sweden, Hokkanen v. Finland, Johansen v. Norway, etc.

Key words: right to respect for private and family life, respect for family life, Italy,
interference, necessary in a democratic society, protection of health,
protection of morals, protection of the rights and freedoms of others,
prohibition of torture, inhuman treatment, inhuman punishment.

Subject:The assessment of eligibility for an ex gratia award
from a fund set up for victims of Nazi prosecution was a matter that engaged
Article 6 even though it did not constitute a "civil right" in domestic
law.

Summary of the Decision:

I. Facts of the case

The applicant
had been subjected to forced labour during the Second World War on the
territory of occupied Poland. Between February 1941 and January 1945 he was
forced to work on German farms and defences, most of which time he was under
the age of 16. In 1993 he applied to the Polish-German Reconciliation
Foundation for compensation from funds contributed by the Government of the
Federal Republic of Germany under an agreement with Poland of 16 October 1991. He
was paid a certain amount for the period of forced labour, but for the months
after his sixteenth birthday the compensation was reduced according to the
eligibility rules which required that claimants should establish that they had
been "deported" by the German authorities during the time in
question. The applicant appealed against this deportation criterion, arguing
that the Foundation had originally accepted that the deportation requirement
was also satisfied by persons who were relocated outside their province of
residence to a province with different administrative status and that its later
insistence on the letter of the law introducing the deportation requirement was
unfair and arbitrary. His appeals were unsuccessful both before the Appeal
Verification Commission and the Supreme Administrative Court. The domestic
courts found that the Foundation was not a public authority and that, as
entitlement to receive a benefit from the Foundation did not fall within the
scope of civil law, claims concerning entitlement could not be raised before a
civil court.

The European Court of Human Rights found that although
there is no general obligation under the Convention for states to compensate
wrongs inflicted in the past under the general cover of state authority, once
such a scheme was established, any criteria for compensation would fall within
the Court's jurisdiction if they were "manifestly arbitrary or blatantly
inconsistent with the fundamental principles of the Convention". Once a
compensation scheme is put in place by a government, or with a government's
consent, and regardless of the nature of the respective benefits, issues of
compliance with Article 6(1) and Article 1 Protocol 1 of the Convention may
well arise. The Court concluded that the absolute exclusion of judicial review
of the decisions issued by the Foundation under the compensation scheme
impaired the very essence of the applicant's right of access to court and he
was awarded non-pecuniary damages of 5,000 Euros.

II. The basic considerations of the case

When Strasbourg
comes to consider the doctrine of state immunity and its compatibility with the
Convention, it will have to square it with the broad reach it has endowed on
Article 6 in Wos and other similar cases on access to court. Strasbourg
rejected all the government's arguments advanced to justified the exclusion of
review or appeal in the context of compensation for Nazi persecution; such
limitations may be considered legitimate, but in this case they were found to
impact too severely on victims in the applicant's position to be considered
proportionate. Applicants should not be left in a sort of "legal
lacuna" when both the ordinary and the administrative courts have
established that they have no jurisdiction to hear their claims. This would be tantamount to the state
removing "from the jurisdiction of the courts a whole range of civil
claims or confer immunities from civil liability on large groups or categories
of persons". The Wós ruling also has some interesting implications for
similar government-backed funds that have been set up in the UK to assist
victims of disasters that cannot be litigated in the ordinary way through the
civil courts. There are in place for example a number of funds provided by the
government for various trusts on behalf of haemophiliacs and non-haemophiliac
victims of the contaminated blood disaster in the seventies and eighties. The
government has always been keen to play down the compensatory character of
these ex gratia payment schemes lest the eligibility for payment acquires legal
backing. But the Wos case demonstrates that the eligibility criteria or any
other considerations taken into account as a preliminary to granting payments
may not be thus ringfenced from challenge in the courts; they all fall within
the purview of Article 6. Where an issue related to assessment of the facts
arises, the Court has indicated the applicability of Article 6(1) would not be
in doubt provided there are reasonable grounds to believe that the fund's
assessment of those facts is "questionable". There will be no point
in resisting a challenge based on the implied access to court right under
Article 6 simply by denying the similarities between an entitlement to welfare
allowance and an entitlement to receive a payment from an ex-gratia fund. The
Polish government's contention in the Wos case that the compensation payments
granted by the Foundation were "incidental in nature" and had
"symbolic rather than real economic value" did not wash with the Court.
The assistance may be "one off", and "humanitarian", but
the basis upon which it is provided is as open to forensic challenge as any
statutory backed financial entitlement. Put another way, the concept of
"civil rights and obligations" under Article 6 is an autonomous one
and therefore the Strasbourg Court has signalled that no government will be
able to persuade it that the Convention is inapplicable because the
compensation claims are not based on classic concepts of civil-law liability
but are instead of a humanitarian nature.
If he or she is unfairly excluded, the claimant – or the victim claiming
an award, to use more neutral wording – has suffered an interference with their
means of subsistence and therefore is claiming "an individual, economic
right flowing from specific rules laid down" in the relevant fund's
originating statute.

Adjudication method: Reference to domestic law of Poland in conjunction with the reference
to international law.

Reference to other constitutional courts: No.

Reference to International Law: Articles 6, 35 and 41 of European Convention of Human
Rights.

Relation with former jurisprudence/Innovative elements: The Court has followed its traditional adjudication
method. It referred to former jurisprudence, i.e. A. v. the United Kingdom, Airey
v. Ireland, Aït-Mouhoub v. France, etc.

Subject:The complainant organisation alleges that the
difficulties experienced by women in the access to termination of pregnancy
provided by the legislation amount to a breach of the right to health as
guaranteed by the Charter.

Summary of the Decision:

I. Facts of the case

It indicates
that Law no. 194 of 22 May 1978 on “Norms on the social protection of
motherhood and the voluntary termination of pregnancy” establishes a balance
between rights pertaining to women (and thus primarily their right to life and
health, as well as self-determination in choices concerning reproduction and
the termination of pregnancy) and those pertaining to medical personnel (and
thus the right to raise conscientious objection in the means and times provided
for by Article 9 of the said Law) providing that neither is sacrificed, except
in cases of imminent danger to the life of the woman. However, the complainant
organisation argues that in practice the high number of doctors being
conscientious objectors entails that the above-mentioned legislative provision
cannot guarantee the effective exercise of women’s right to have access to
procedures for the termination of pregnancy.

The European Committee of Social Rights declared the
complaint admissible and in view of the seriousness of the allegations, decided
to give precedence to this complaint and thus sets time limits for the
proceedings which will not be extended.

II. The basic considerations of the case

1. a) Health is
a fundamental human right indispensable for the exercise of other human rights.
Every human being is entitled to the enjoyment of the highest attainable
standard of health conducive to living a life in dignity. The realisation of
the right to health may be pursued through numerous, complementary approaches,
such as the formulation of health policies, the implementation of health
programmes developed by the World Health Organization (WHO), or the adoption of
specific legal instruments. Moreover, the right to health includes certain
components which are legally enforceable.

The right to
health is closely related to and dependent upon the realization of other human
rights, as contained in the International Bill of Rights, including the rights
to food, housing, work, education, human dignity, life, non-discrimination,
equality, the prohibition of torture, privacy, access to information, and the
freedoms of association, assembly and movement. These and other rights and
freedoms address integral components of the right to health.

Article 11 of
the European Social Charter and the Revised European Social Charter guarantees
the right to protection of health. This provision complements Articles 2 and 3
of the European Convention on Human Rights, as interpreted in the case-law of
the European Court of Human Rights, by imposing a range of positive obligations
designed to secure the effective exercise of that right.

Article 11
provides for a series of rights to enable persons to enjoy the highest possible
standard of health attainable. These rights consist on the one hand in measures
to promote health and on the other hand in the provision of health care in case
of sickness. With its broad scope it would appear evident that Article 11
encompasses sexual and reproductive health rights, however in its case law to
date the European Committee of Social Rights has addressed only certain topics
such as maternal mortality, counselling and screening during pregnancy and in
particular sexual and reproductive health education and awareness-raising.

As regards
maternal mortality it is one of the indicators that the Committee
systematically examines under Article 11§1 in evaluating how well a particular
country’s overall health system is operating. The Committee considers that
maternal mortality is an avoidable risk that can be controlled by human action
and it follows that States Parties should take every step to reduce the
maternal mortality rate as close to zero as possible. The Committee also
considers that under Article 11§2 counselling and systematic screening should
be free for pregnant women.

1.b) Moreover, the
European Social Charter and the Revised Charter, provides protection from
discrimination with article E. Article E draws its inspiration from Article 14
of the European Convention on Human Rights. It takes up the principle of
non-discrimination which was set forth in the Preamble of the Social Charter of
1961 and incorporates it into the main body of the Revised Charter. Article E
prohibits all forms of discrimination. It confirms the right to non - discrimination
which is established implicitly or explicitly by a large number of Charter
provisions. The insertion of Article E into a separate Article in the Revised
Charter indicates the heightened importance the drafters paid to the principle
of non-discrimination with respect to the achievement of the fundamental rights
contained therein. Its function is to help secure the equal effective enjoyment
of all the rights concerned regardless of the specific characteristics of
certain persons or groups of persons. It does not constitute an autonomous
right which could in itself provide independent grounds for a complaint. The
prohibited grounds for discrimination in Article E are a combination of those
listed in Article 14 of the European Convention on Human Rights and those in the
Preamble to the 1961 Charter. The expression “or other status” means that this
is not an exhaustive list. Moreover, the
Committee has expressly stated that disability is a prohibited ground for
discrimination although it is not listed as such in the article

Adjudication method: Reference to domestic law of Italy in conjunction with the reference to
international law.

Reference to other constitutional courts: No.

Reference to International Law: Articles 11 and E of European Social Charter.

Relation with former jurisprudence/Innovative elements: The Court has followed its traditional adjudication
method. It referred to the domestic law (in this case the law of Italy) in
conjunction with the articles of European Social Charter.

Bibliography: “Sexual and reproductive health topics in the European Social Charter”.
Available at:

Related social rights: Right to respect for private and family life / Prohibition of inhuman or
degrading treatment.

Constitutional provisions: No.

Subject:The applicant’s forced sterilization was in violation
of Article 3 (prohibition of inhuman and degrading treatment) and Article 8
(respect for private and family life). The Court condemns the Slovakian
government in strong terms.

Summary of the Decision:

I. Facts of the case

V.C. was
forcibly sterilized in the state hospital, Prešov Hospital, in Eastern Slovakia
on 23 August 2000, during the delivery of her second child. As attested by her
medical records, shortly before this delivery was terminated by a caesarean
section, while she was in labour and had contractions every three minutes, the
Hospital staff pressured her to sign one sentence in her medical file as “a
request for sterilization”. She was told that unless signed that sentence, she
or her baby would have died. V.C. did not understand what sterilization meant
but she signed the medical record nonetheless, as she was in fear for her life.
She was sterilized during the surgery. Later, she found out that the
information she was given was incorrect and that the sterilization was not
necessary for saving her life since it is merely a form of contraception. V.C.
was greatly traumatized by the forced sterilization, her husband divorced her,
she was ostracized by the community, experienced a hysterical pregnancy and had
to undergo psychiatric counselling. Since 2004, V.C. sued for damages from the
Prešov Hospital at the Slovakian courts, including the Constitutional Court of
Slovakia. All her petitions were rejected. In 2007, she brought a complaint
against Slovakia to the European Court.

The European Court held a hearing in the case on 22
March 2011. Four years later, on 8 November 2011, the European Court found the
violation of her rights and declared a violation of her rights to freedom from
inhuman and degrading treatment (under Article 3 of the European Convention on
Human Rights) and the right to private and family life (under Article 8 of the
Convention). The European Court rejected the claims of the Slovak Government
that sterilization was “medically necessary” since sterilization is not a lifer
saving surgery and V.C.’s informed consent was needed. In the Court’s view, the
approach of the medical personnel of the Prešov Hospital was not compatible
with the principles of respect for human dignity and human freedom embodied in
the Convention as it did not permit V.C. to take a decision of her own free
will, after consideration of all the relevant issues. The Slovak Government was
ordered to pay the compensations of 31,000 EUR as well as the reimbursement of
her legal costs.

II. The basic considerations of the case

1.a) The Court
strongly expresses its disapproval of the way V.C. was treated by the hospital
staff: ‘The way in which the hospital staff acted was paternalistic, since, in
practice, the applicant was not offered any option but to agree to the
procedure which the doctors considered appropriate in view of her situation.
However, in similar situations informed consent was required, promoting
autonomy of moral choice for patients.’ And it gets even better because the
Court goes on to explain what meaningful consent in the area of reproductive
rights requires. The Court thoroughly grounds the principle of “informed
consent” in both international conventions and documents – notably the
Convention on Human Rights and Biomedicine, and CEDAW’s General Recommendation
24 – and general principles such as respect for human dignity, human freedom,
and autonomy. According to the Court, informed consent includes information
about one’s health status; information about the proposed procedure and the
alternatives to it; and time for reflection. Also, the Court notes: ‘the
applicant’s informed consent could not be dispensed with on the basis of an
assumption on the part of the hospital staff that she would act in an
irresponsible manner with regard to her health in the future’.

1.b) Furthermore,
the Court recognizes the harm that has been done to V.C. The Court notes that “the sterilisation
procedure grossly interfered with the applicant’s physical integrity as she was
thereby deprived of her reproductive function”, and goes on to note that “the
sterilisation procedure, including the manner in which the applicant was
requested to agree to it, was liable to arouse in her feelings of fear, anguish
and inferiority and to entail lasting suffering”. This recognition of harm goes
hand in hand with empathy for V.C. and the particular situation that she was
in. The Court notes that her suffering is augmented by the fact that she was
forcibly sterilized when she was very young (V.C. was 20 years old at the time)
and thus only at the beginning of her reproductive life; the fact that the
sterilization led to grave problems with her partner; the fact that she
developed psychological problems; and that her sterilization led to social
problems. The Court makes an interesting and, in our view, correct link between
the harmful practice it condemns and the widespread prejudice against Roma.
Following the Council of Europe Human Rights Commissioner and ECRI, the Court
admits that the reason why the Roma population was at particular risk was “the
widespread negative attitudes towards the relatively high birth rate among the
Roma compared to other parts of the population, often expressed as worries of
an increased proportion of the population living on social benefits”
(paragraphs 146 and 147). The Court nicely brings human rights reports,
including CEDAW’s into play.

Adjudication method: Reference to domestic law of Slovakia in conjunction with the
reference to international law.

Reference to other constitutional courts: No.

Reference to International Law: Articles 3, 8, 13 and 41 of European Convention on
Human Rights

Relation with former jurisprudence/Innovative elements: The Court has followed its traditional adjudication
method and it referred to its former jurisprudence, i.e. A, B and C v. Ireland, Aksoy v. Turkey, Anayo
v. Germany etc.

Related social rights: Right to respect for private and family life / Protection of health

Constitutional provisions: No.

Subject:The case concerned two Austrian couples wishing to
conceive a child through IVF. One couple needed the use of sperm from a donor
and the other, donated ova. Austrian law prohibits the use of sperm for IVF and
ova donation in general.

Summary of the Decision:

I. Facts of the case

Two Austrian
couples complained about this regulation; the first couple needs IVF treatment
with use of donor sperm and the other couple needs IVF with use of a donor ovum
to fulfill their wish for a child of which at least one of them is the genetic
parent. In 2010, the First Section held in S.H. and Others v. Austria that the
Austrian regulation violated Article 14 in conjunction with Article 8 of the
Convention, with a vote of 6-1 regarding the first couple and 5-2 vote
regarding the second couple.

The Court noted that, although there was a clear trend
across Europe in favour of allowing gamete donation for in-vitro fertilisation,
the emerging consensus was still under development and was not based on settled
legal principles. Austrian legislators had tried, among other things, to avoid
the possibility that two women could claim to be the biological mother of the
same child. They had approached carefully a controversial issue raising complex
ethical questions and had not banned individuals from going overseas for
infertility treatment unavailable in Austria. The Court concluded that there
had been no violation of the Convention. However, it underlined the importance
of keeping legal and fast-moving scientific developments in the field of
artificial procreation under review.

II. The basic considerations of the case

For the ECLJ,
the decision of the Grand Chamber to reverse this first judgment is of
fundamental importance, because it confirms that the reference to “natural
procreation” and to the “natural family” (with only one mother and one father),
as the model for the regulation of the techniques of artificial procreation,
justifies the ban of IVF with sperm or ova donations. It also confirms that the
sensitive moral questions raised by IVF can legitimately be taken into
consideration by national legislators. The First Section decision had a
devastating effect on both the ontology and on the law: it was the destruction
of the biological family as the social model, as well as the destruction of the
“moral considerations” as a legitimate counterbalance of the use of
biotechnologies. The Grand Chamber ruling comes only a few days after another
major ruling on bioethics, delivered by the European Court of Justice
(Luxembourg’s EU Court) in the case of Brüstle v. Greenpeace, which is also a
victory for ethics and bioethics with regard to a purely immoral and
utilitaristic vision of science and of human beings.

It should be
noted that the Grand Chamber refuses to answer the question “whether there
exists a positive obligation on the State to permit certain forms of artificial
procreation using either sperm or ova from a third party”. A negative answer to
this question would have been inevitable. On the contrary, assuming that the
ban of heterologous techniques is an interference of the State with the
applicants’ right of respect for their family life, the Court analysed the
justification of this ban while taking into account other social interests
(assessments of the “negative obligations” of the State).

On a more
negative note, the Grand Chamber confirmed the Section assessment that “the
right of a couple to conceive a child and to make use of medically assisted
procreation for that purpose is also protected by Article 8, as such a choice
is an expression of private and family life”. The ECLJ argued and maintained,
along with the Italian government, that there is no “right of a couple to
conceive a child and to make use of medically assisted procreation” under the
Convention. There is only a right to attempt to conceive a child; otherwise, in
an Orwellian style, the State would ultimately have to provide for the
children. At the end of its decision, even if it finds no breach of the
Convention, the Grand Chamber could not refrain from advising the Austrian
legislator that “this area, in which the law appears to be continuously
evolving and which is subject to a particularly dynamic development in science
and law, needs to be kept under review by the Contracting States” ,
substituting itself to the national legislator.

Adjudication method: Reference to domestic law of Austria in conjunction with the reference
to international law.

Reference to other constitutional courts: No.

Reference to International Law: Article 8 of European Convention on Human Rights

Relation with former jurisprudence/Innovative elements: The Court has followed its traditional adjudication
method and it referred to its former jurisprudence, i.e. A, B and C v. Ireland,
Bensaïd v. the United Kingdom, Christine Goodwin v. the United Kingdom etc.

Key words: Right to respect for private and family life, Respect for family life, Respect
for private life, Necessary in a democratic society, Protection of health,
Protection of morals, Protection of the rights and freedoms of others

Subject:A pregnant woman from Poland, diagnosed with a severe
eye disease, tried to get an abortion to avoid an escalation of her disease.
Her requests were rejected by several medical doctors and she underwent labor
of her third child. Her condition later deteriorated, and she sued one of the
doctors.

Summary of the Decision:

I. Facts of the case

This case
concerns Alicja Tysiąc, a Polish woman who has suffered for many years from
severe myopia. When she discovered that she was pregnant for the third time,
she consulted several doctors in Poland to determine what impact this might
have on her sight. Although doctors concluded that there would be a serious
risk to her eyesight if she carried the pregnancy to term, they refused to
issue a certificate authorising termination. Two months in to the pregnancy,
her eyesight deteriorated significantly. She secured a referral for a
termination on medical grounds but the gynaecologist refused to perform it.
There was no procedure through which Ms Tysiąc could appeal this decision and
she gave birth to a child in November 2000. Her eyesight deteriorated further
following the delivery. She now cannot see objects more than 1.5 metres away,
risks becoming completely blind, and requires daily assistance.

In March 2007, European Court of Human Rights found
that the Polish legal framework did not provide an effective mechanism to
resolve disagreements as to the availability or legality of therapeutic
termination in any case, either between a pregnant woman and doctors or between
medical staff themselves. Concluding that Poland had violated Ms Tysiąc’s right
to respect for private life and noting the severe distress and anguish caused
to her, the Court ordered Poland to pay a substantial sum in non-pecuniary
damages. In September 2007, the Grand Chamber of the Court announced that it
would not be considering the Court's earlier decision.

II. The basic considerations of the case

1.a) The Court
stated that ´the failure of the State to make a legal abortion possible in
circumstances which threatened her health, and to put in place the procedural
mechanism necessary to allow her to have this right realised, meant that the
applicant was forced to continue with a pregnancy for six months knowing that
she would be nearly blind by the time she gave birth. The anguish and distress
and the subsequent devastating effect of the loss of her sight on her life and
that of her family could not be overstated.´ However, it held that in the
instant case there was no violation of Article 3. The Court reached this
conclusion without fully explaining why this anguish and distress did not reach
the threshold of cruel, inhumane or degrading treatment.

1.b) The Court
went on to examine article 8 of the Convention and the right to due respect for
her private life and her physical and moral integrity. After first noting the general principles,
the Court highlighted that that there may also be positive obligations in an
effective respect for private life. The
Court also noted that the boundaries between State´s positive and negative
obligations under Article 8 do not lend themselves to precise definition.

The applicant
argued that this right had been violated by the Polish government for failing
to provide her with a legal therapeutic abortion, and further, that the absence
of a comprehensive legal framework regulating these services resulted in a
breach of Poland´s positive obligations.

The Court found
that article 8 was applicable in the instant case as it related to the right to
respect for private life. It found that it was most appropriate to decide the
case on the basis of the government´s fulfillment of its obligations under the
Convention. Before determining whether
the State had acted in compliance with article 8 the Court reiterated that
rights under the convention are not theoretical or illusory but that they are
practical and effective. In examining
State compliance with article 8, the Court noted the fifth periodical report to
the ICCPR Committee in which the Polish government acknowledged that there had
been deficiencies in the manner in which the 1993 had been applied in practice.

The Court found
that when there are situations of disagreement as regards to legal abortions
such applicable legal provisions ´must, first and foremost, ensure clarity of
the pregnant women´s legal position´.
The Court went on to find that while the State regulations on abortion
relate to the traditional balancing of privacy and the public interest, they
must 'in case of a therapeutic abortion' be also assessed against the positive
obligations of the State to secure the physical integrity of
mothers-to-be. The Court stated that
´once the legislature decides to allow abortion, it must not structure its
legal framework in a way which would limit real possibilities to obtain it´.

The Court citing
previous case law found that there must be procedures available in order to
review the circumstances of a case. In
the instant case, the court held that an appropriate procedure would entail
allowing a pregnant woman at least a possibility to be heard in person and to
have her views considered. Then a
competent body should issue written grounds for its decision. The Court found that the procedures in place
should ensure that decisions are timely so as to limit or prevent damage to a
woman´s health which might be occasioned by a late abortion. In the instant case, there was no regulation
regarding the appropriate procedure to be followed when there was disagreement
between medical personnel concerning the effects of a pregnancy on the
woman. This had left the applicant in a
situation of anguish and distress due to the uncertainty.

The Court
therefore found that the absence of preventative procedures in domestic law
amounted to the failure of the State to comply with its positive obligations
under Article 8 of the Convention.

Adjudication method: Reference to domestic law of Poland in conjunction with the reference
to international law.

Reference to other constitutional courts: No.

Reference to International Law: Article 3, 13, 14 and 35 of European Convention on
Human Rights

Relation with former jurisprudence/Innovative elements: The Court has followed its traditional adjudication
method and it referred to its former jurisprudence, i.e. etc.

Related social rights: Right to respect for private and family life / Prohibition of inhuman or
degrading treatment.

Constitutional provisions: No.

Subject:In the case of N.B. v. Slovakia (Application no.
29518/10, Judgment of June 12 2012) the ECtHR found the violation of Article 3
and 8 of the ECHR in relation with a Roma woman’s sterilisation.

Summary of the Decision:

I. Facts of the case

N.B. was
forcibly sterilized in the Gelnica Hospital, in Eastern Slovakia, during the
caesarean section delivery of her second child v on 25 April 2001. At the time
of sterilization, she was only 17 years old, and was a legal minor under the
Slovak law. Informed consent of her legal guardians (parents) was legally
required. However, the guardians did not give any consent to sterilization and
no record on this was entered in the release report from the hospital. N.B.
found about the sterilization only several months later, after her lawyers
inspected her medical records in the Hospital. Afterwards, in 2004, N.B. sued
the Hospital for damages and she also started criminal proceedings against the
doctors. In 2008, the District Court in Spišska Nova Ves found sterilization
illegal and granted her compensations in amount of app. 1,590 EUR. N.B. found
this inadequate in the view of the seriousness of the forced intervention. The
police and the Constitutional Court of Slovakia rejected her complaints, so she
brought the case to the European Court. The Court ruled in her favour on 12
June 2012. N.B. was represented by lawyers from the Slovak feminist group
Center for Civil and Human Rights from Košice who represent many other similar
cases. After the decision, they called on the Slovak Government to compensate
all the victims in pending cases instead of repeatedly "facing an
international humiliation and condemnation"

The Court unanimously found that the Romani woman had
been sterilized without informed consent in contravention of Articles 3 and 8
of the European Convention on Human Rights.

II. The basic considerations of the case

1.a) The
applicant complained that she had been subjected to inhuman and degrading
treatment on account of her sterilisation without her and her representative’s
full and informed consent. She maintained that her sterilisation had not been a
life-saving intervention and that it had had a lasting impact on her physical
and psychological health, her relationship with her husband, and on her family
and had affected her position within the Roma community which had amounted to
treatment contrary to Article 3 of the ECHR. The Court found that the way by
which the medical staff of the hospital obtained the applicant’s consent to the
sterilisation violated the applicant’s physical integrity and was grossly
disrespectful of her human dignity. The medical staff “acted with gross
disregard for her human freedom, including the right to freely decide, together
with her representative and after having had the possibility of discussing the
matter with her partner, whether she consented to the procedure”. Although the
information available for the Court did not indicate that the medical staff
acted with the intention of ill-treating the applicant, they nevertheless acted
with gross disregard for her human freedom, including the right to freely
decide, together with her representative and after having had the possibility
of discussing the matter with her partner, whether she consented to the
procedure. The Court also noted that N.B., at the time of the intervention, was
still legally underage and the and at an early stage of her reproductive life.
The sterilisation grossly interfered with her physical integrity, as she was
thereby deprived of her reproductive capacity. The Court found that there had
been a violation of Article 3 of the ECHR on account of the applicant’s
sterilisation stating that [g]iven its serious nature and consequences, the
sterilisation procedure, including the manner in which the applicant was asked
to agree to it, was liable to arouse in her feelings of fear, anguish and
inferiority and to entail lasting suffering.

1.b) The
applicant also complained that her right to respect for her private and family
life had been violated as a result of her sterilisation, which had been carried
out contrary to the requirements of the relevant law and without her and her
mother’s full and informed consent. The applicant maintained that her private and
family life had been severely affected as a result of the sterilisation
procedure. On the other hand the Government pointed to the fact that the
domestic courts had acknowledged that the requirements of domestic law had not
been complied with in the applicant’s case. They further argued that the
medical staff had considered the procedure necessary with a view to protecting
the applicant’s life and health. The Court found that there had been a breach
of Article 8 of the ECHR as the applicant’s sterilisation affected her
reproductive health status and had repercussions on various aspects of her
private and family life. It therefore amounted to interference with her rights
under Article 8. It was carried out contrary to the requirements of domestic
law, as the applicant’s mother had not given her consent to the procedure. This
was not disputed between the parties.

Therefore Slovakia failed to comply with its positive
obligation under Article 8 by putting in place effective legal safeguards to
protect the reproductive health of, in particular, women of Roma origin. The
“failure to respect the statutory provisions combined with the absence at the
relevant time of safeguards giving special consideration to the reproductive
health of the applicant as a Roma woman resulted in a failure by the respondent
State to comply with its positive obligation to secure to her a sufficient
measure of protection enabling her to effectively enjoy her right to respect
for her private and family life”.

Adjudication method: Reference to domestic law of Slovakia in conjunction with the
reference to international law.

Reference to other constitutional courts: No.

Reference to International Law: Articles 3, 8, 34, 35 and 41 of European Convention on
Human Rights

Relation with former jurisprudence/Innovative elements: The Court has followed its traditional adjudication
method and it referred to its former jurisprudence, i.e. Adamski v. Poland, Aksoy v. Turkey, Amuur v.
France, etc.

Related social rights: Right to respect for private and family life / Right to life

Constitutional provisions: No.

Subject:Evans v. the United Kingdom was a key case at the
European Court of Human Rights. The case outcome could have had a major impact
on fertility law, not only within the United Kingdom but also the other Council
of Europe countries.

Summary of the Decision:

I. Facts of the case

Natallie Evans,
who was suffering from ovarian cancer, underwent in-vitro fertilisation (IVF)
with her then partner J. before having her ovaries removed. Six embryos were created
and placed in storage. When the couple’s relationship ended, J withdrew his consent
for the embryos to be used, not wanting to be the genetic parent of Ms Evan’s child.
National law consequently required that the eggs be destroyed, thus preventing
Ms Evans from ever having a child to whom she would be genetically related.

While sympathising with Ms Evan’s plight, the European
Court of Human Rights found no violation of Articles 2 (right to life), 8
(right to respect for family life) or 14 (prohibition of discrimination) of the
European Convention on Human Rights: the embryos created did not have a right
to life; there was no European consensus; and, the rules on consent were clear,
brought to Ms Evan’s attention before she underwent IVF and struck a fair balance
between the competing interests.

II. The basic considerations of the case

1.a) The alleged
violation of Article 2 of the ECHR related to the embryos themselves, that the
legal requirement to destroy the stored embryos once consent had been withdrawn
violated the embryos’ right to life. Although Miss Evans legal team did not
pursue this alleged violation in the appeal, the Grand Chamber was required to
consider this matter again, albeit briefly. The Grand Chamber is in agreement
with the Chamber that due to the lack of a European consensus on an accepted
definition of the beginning of life, “…the issue of when the right to life
begins comes within the margin of appreciation…Under English law,…an embryo
does not have independent rights or
interests and cannot claim…a right to life under Article 2. There had not,
accordingly, been a breach of that provision.”

1.b) Article 8,
the right to respect for private life, was agreed to include the right to
respect for both the decision to become and not to become a parent and that
this also includes the decision to become a parent in the genetic sense. This
undoubtedly involves a conflict between the Article 8 rights of two private
individuals, which ever solution is used will result in one party either being
forced to become a parent, or the other being denied the opportunity of
becoming a genetic parent. Additionally, the Grand Chamber accepted the UK
Government submission that the case also involved wider public interests,
namely to uphold the principle of primacy of consent and to promote legal
clarity and certainty. In contrast to the UK Courts the Grand Chamber views
this case as involving positive obligations upon the State, rather than interference,
and that “…the principal issue…being whether the legislative provisions as
applied in the present case struck a fair balance between the competing public
and private interests involved.” In seeking to determine the question whether
the application of the law struck a fair balance between competing interests,
it is recognised by the Grand Chamber that the margin of appreciation to be
afforded to the UK is a wide margin due to the lack of common ground in the
Member States on these difficult ethical issues and that the policies and
principles to be applied in these sensitive areas is to be decided by each
State. The detailed and lengthy process which the UK undertook before the
enactment of the Human Fertilisation and Embryology Act 1990 is also considered
as relevant by the Grand Chamber. Miss Evans criticised the consent rules laid
out in the Act due to the inability to disapply them in certain circumstances.
However, the Grand Chamber “…does not find that the absolute nature of the law
is, in itself, necessarily inconsistent with Article 8. …Respect for human
dignity and free will, as well as a desire to ensure a fair balance between the
parties…underlay the legislature’s decision to enact provisions permitting of
no exception…In addition…the absolute nature of the rule served to promote
legal certainty and to avoid the problems of arbitrariness and inconsistency inherent
in weighing…”entirely incommensurable” interests.” As such the Grand Chamber
concludes that the “…general interests
pursued by the legislation are legitimate and consistent with Article 8.” In
respect of the competing private interests the Grand Chamber is adamant that
Miss Evans’ right to respect to become a genetic parent should not be accorded
greater weight than Mr Johnston’s right to respect his decision not to have a
genetically related child with Miss Evans. A fair balance had been struck
between all of the competing interests, the domestic law is clear and brought
to Miss Evans’ attention at the time of treatment and storage, and as such
there was no violation of Article 8 of the ECHR.

Furthermore, the Court dismissed the argument that there was discrimination
between women who could conceive without medical assistance and women, such as
herself, who required medical assistance for conception under article 14 of
European Convention on Human Rights.

Adjudication method: Reference to domestic law of United Kingdom in conjunction with the
reference to international law.

Reference to other constitutional courts: No.

Reference to International Law: Articles 2, 8, and 14 of European Convention on Human
Rights

Relation with former jurisprudence/Innovative elements: The Court has followed its traditional adjudication
method and it referred to its former jurisprudence, i.e. Christine Goodwin v. the United Kingdom, Dudgeon
v. the United Kingdom, Fretté v. France etc.

Subject:The respondent state's refusal to exercise its
discretion in allowing the applicant prisoner to have facilities for artificial
insemination breached his and his wife's rights under Article 8 of the
Convention.

Summary of the Decision:

I. Facts of the case

The complainant
husband was serving a minimum sentence of 15 years after a conviction for
murder for kicking a drunken man to death. He and his wife, the second
complainant, established a pen-pal relation while both were serving prison
sentences. The couple had never lived together; there was a 14-year age
difference between them; the wife, who had three children by previous
relationships, was by now at an age where natural or artificial procreation was
hardly possible and in any case risky.
The first complainant's expected release date fell when the wife,
already released, would be 51 years old.
It therefore followed that any child which might be conceived would be
without the presence of a father for an important part of his or her childhood
years. The first application for artificial insemination facilities was made
over six years before the instant hearing. The secretary of state's refusal had
been on the grounds that the first complainant's relationship had yet to be
tested in a normal environment, that there was insufficient provision for the
material welfare of any child conceived, who would also be without the presence
of a father for an important period of childhood, and that there would be
legitimate public concern that the punitive and deterrent elements of the life
sentence for a violent crime would be circumvented. He was unsuccessful in
applying for judicial review, and for leave to appeal. Invoking Article 8 of
the Convention they complained that the refusal of the respondent state to
allow them facilities for artificial insemination was in breach of their rights
to private and family life.

The Court held, by 12 votes to five, that there had
been a violation of Article 8 of the Convention as a fair balance had not been
struck between the competing public and private interests.

II. The basic considerations of the case

While the
Chamber confirmed that persons continued to enjoy all Convention rights
following conviction except the right to liberty, it also noted that any prison
sentence has some effect on the normal incidents of liberty and inevitably
entailed limitations and controls on the exercise of Convention rights. The
fact of such control was not, in principle, incompatible with the Convention
but the key issue was whether the nature and extent of that control was
compatible. The Court considers that Art.8 is applicable to the applicants'
complaints in that the refusal of artificial insemination facilities concerned
their private and family lives which notions incorporate the right to respect
for their decision to become genetic parents. There is, therefore, no question
that a prisoner forfeits his Convention rights merely because of his status as
a person detained following conviction. Thus, restrictions must be justified.
This justification can flow, inter alia, from the necessary and inevitable
consequences of imprisonment. As to the
applicants' interests, it was accepted domestically that artificial
insemination remained the only realistic hope of the applicants. Whilst the
inability to beget a child might be a consequence of imprisonment, it is not an
inevitable one, it not being suggested that the grant of artificial
insemination facilities would involve any security issues or impose any
significant administrative or financial demands on the State. Similarly, while
the maintaining of public confidence in the penal system has a role to play in
the development of penal policy and that punishment remains one of the aims of
imprisonment, penal policy has evolved towards
the increasing relative importance of the rehabilitative aim of imprisonment,
particularly towards the end of a long prison sentence. The Court is prepared
to accept as legitimate, for the purposes of the second paragraph of Art.8,
that the authorities, when developing and applying the policy, should concern
themselves, as a matter of principle, with the welfare of any child: conception
of a child was the very object of the exercise. However, that cannot go so far
as to prevent parents who so wish from attempting to conceive a child in
circumstances like those of the present case, especially as the second
applicant was at liberty and could have taken care of any child conceived until
such time as her husband was released.

Adjudication method: Reference to domestic law of United Kingdom in conjunction with the
reference to international law.

Reference to other constitutional courts: No.

Reference to International Law: Articles 8, 12 and 41 of European Convention on Human
Rights

Relation with former jurisprudence/Innovative elements: The Court has followed its traditional adjudication
method and it referred to its former jurisprudence, i.e. Aliev v. Ukraine, Boso
v. Italy, E.L.H. and P.B.H. v. the United Kingdom, Kalashnikov v. Russia etc.

Key words: Right to respect for private and family life, Respect for family life, Respect
for private life, Just satisfaction, Jurisdiction to give orders or grant
injunctions, Margin of appreciation, Positive obligations, Proportionality, Right
to marry, Found a family

Constitutional
Provisions:
Section 26 of the South African Constitution

Summary
of the decision

a) Facts

A group of adults and children lived in very poor
conditions and, during the rainy season in the Western Cape, the land on which
they resided became water-logged. After moving to vacant private land, they
were evicted and their belongings destroyed. They landed up on a sports field
with only plastic sheeting to cover them. They claimed that the government had
a duty to provide them with shelter from the elements. The High Court held that
only the children could claim immediate shelter; parents of children could,
however, claim shelter by virtue of their children’s right since they should
not be separated from their children. Nevertheless, on appeal, the
Constitutional Court found that the right to have access to adequate housing of
both adults and children was implicated in this case. It decided that the
housing programme of the government was unreasonable and thus unconstitutional

b) Key
reasoning

The court outlined its approach to socio-economic
rights in this case. The state had a duty to establish a programme to realise
the socio-economic rights in the bill of rights. That programme had to be
reasonable. The court outlined several criteria as to what was involved in
establishing a reasonable programme. The latter involves the establishment and
implementation by the state of a coherent, well coordinated, flexible and
comprehensive programme directed towards the progressive realisation of the
right of access to adequate housing. In this vein, the state is not only compelled
to adopt legislative and policy measures, but also to act in a manner that is
designed to achieve the intended result. Moreover, a reasonable programme must ‘make
appropriate provision for attention to housing crises and to short, medium and
long term needs’. The court then evaluated the government housing programme
against the reasonableness standard. It found that the absence of a provision
in the housing programme that dealt with people in desperate need in the
shorter term, rendered the programme unreasonable. The order in this case was simply
declaratory: it declared the government housing programme unreasonable without
mandating that anything specific be done.

Adjudication method

Limited
focus on socio-economic rights themselves; focus on reasonableness as a notion
and outlined criteria that were involved in assessing reasonableness

References
to other constitutional courts

Ex Parte Western Cape Provincial Government and Others: In Re DVB
Behuising (Pty) Ltd v North West Provincial Government and Another 2000 (4) BCLR 347 (CC) .

Ex Parte Chairperson of the Constitutional Assembly: In Re
Certification of the Constitution of the Republic of South Africa, 1996 (4) SA 744; 1996 (10) BCLR 1253 (CC)

There had
been very limited jurisprudence prior to this case. The focus in the prior case
had been on the question of available resources. A minimal rationality standard
had been outlined. This case outlines a reasonableness standard for assessing
social rights programmes of the government. It rejects the minimum core
approach at the international law which is something that has attracted much
academic criticism

Bibliography

Bilchitz, D Poverty and Fundamental Rights The
Justification and Enforcement of Socio-economic Rights(2007) Oxford University Press

Constitutional
Provisions:
Section 27(1)(a) of the South African Constitution

Summary of the decision

a)Facts:

The case concerned access to a drug, nevirapine, which
reduced the likelihood of mother to child transmission of HIV at birth. Despite
the drug being freely available to the government, it had made it available to
individuals in the public health care system only at 18 research and training
sites across the country. A civil society organisation, the Treatment Action
Campaign took the case to court , claiming that the failure to make the drug
universally available violated the right to have access to the health care
services (section 27(1)(c) of the Constitution.

b) Basic consideration of the case/ key reasoning

The court
continued to focus on the notion of whether the government programme in
question was reasonable. Given the safety and efficacy of the drug as well as
its availability for free to the government, the court found the failure to
make it universally available across the public health care system was
unreasonable. It found that the desire of the government to establish the best
possible treatment programme should not stand in the way of ensuring people
have access to the drug in the interim whilst such a programme was being
designed. In this case, it went beyond Grootboom, and gave a mandatory order,
requiring universal access to this drug as well as for counselling to be
provided across the health care system.

Adjudication method

The court
continued to employ the reasonableness doctrine that a government programme
must be reasonable. It also rejected once again the minimum core approach. It
also outlined that it had wide remedial powers in relation to socio-economic
rights in order to give both mandatory and supervisory orders.

Dawood
and Another v Minister of Home Affairs and Others; Shalabi and Another v
Minister of Home Affairs and Others; Thomas and Another v Minister of Home
Affairs and Others 2000 (3) SA 936 (CC);
2000 (8) BCLR 837 (CC)

Mohamed
and Another v President of the Republic of South Africa and Others (Society for
the Abolition of the Death Penalty in South Africa and Another Intervening) 2001
(3) SA 893 (CC); 2001 (7) BCLR 685

New
National Party of South Africa v Government of the Republic of South Africa and
Others 1999 (3) SA 191 (CC); 1999 (5) BCLR 489
(CC)

Reference
to International Law

Yes: ICESCR, General Comment NO 3

Relation
with former jurisprudence/Innovative elements

The
reasonableness standard for assessing social rights programmes of the
government still informs the proceedings. Here confining
nevirapine to research and training sites was unreasonable as it fails to
address the needs of mothers and their newborn children who do not have access
to these sites.

Bibliography

Bilchitz, D ‘South Africa:
Right to Health and Access to HIV/AIDS Drugs Treatment’ (2003) 1(3) International Journal of Constitutional Law 524-534

Chapman,
A ‘Core Obligation Related to the Right to Health and their Relevance for South
Africa’ in Brand, D and Russel, S (eds
) Exploring the Core Content of Socio-Economic Rights: South African and
International Perspectives (2002) Pretoria. Protea Book House

Constitutional Provisions: Section 27(1)(c) of the South African
Constitution

Summary of the decision

a) Facts:

The case
dealt with Mozambican citizens who had acquired permanent residence permits in
South Africa. These Mozambicans people were poor and would have been eligible
for pension grants and child support grants but for the fact that they were not
citizens of South Africa. They challenged the constitutionality of the limitation
of social grants in the Social Assistance Act to South African citizens only.
The permanent residents argued that section 27 of the Constitution provides for
the right to social assistance for ‘everyone’ including permanent residents and
not only South Africans. The Court found for the applicants and declared the
legislation to be unconstitutional, and ordered that the words “or permanent
residents” be read into the legislation so as to allow permanents residents to
benefit from these social grants.

b) Basic
consideration of the case/ key reasoning

The Court
noted that political rights (section 19 of the Constitution) and the right to
have access to land were clearly limited to South African citizen only. However, the court pointed out that section 27
expressly refers to “everyone” having the right to social assistance grants,
and this, it held, could not be seen to refer to South Africans only. The court
also importantly in this case considered the intersection between social rights
and the right to equality (section 9 of the Constitution) in reaching its decision.
The central question concerned whether the exclusion of a particular group from
a social programme constituted unfair discrimination and was, as a result,
unreasonable. The case linked together the ‘reasonableness’ approach in
relation to social rights with the court’s approach to unfair discrimination
claims.

Adjudication
method

The court
continued to employ the reasonableness doctrine that a government social programme
must be reasonable. It then asked whether the exclusion of permanent residents
from accessing social grants was reasonable. In doing so, it considered whether
such an exclusion constituted unfair discrimination. In this enquiry, the court
considered the purpose served by social security, the impact of the exclusion
on permanent residents and the relevance of the citizenship to that purpose. Permanent
residents, the court held, had made South Africa their home, have similar legal
obligations to citizens and their exclusion from social grants would hinder
their ability to enjoy other rights under the Constitution. Taking all these
factors into account, the court reached the conclusion that the exclusion of
permanent residents from social assistance programmes constituted unfair
discrimination and was consequently unreasonable. A minority decision disagreed
with the evaluation of the majority and found that the exclusion of permanent
residents was itself reasonable.

References
to other constitutional courts

Dawood
and Another v Minister of Home Affairs and Others, Shalabi and Another v
Minister of

The reasonableness
doctrine was used again in this case as well as the court’s approach to unfair
discrimination outlined in the Harksen v
Lane case. The court also referred to other cases where it found that
discrimination against non-citizens could be an analogous ground others
expressly listed in the unfair discrimination clause.

Krause, C
& Scheinin M ‘ The Right not to be Discriminated Against: The Case of Social
Security’ In Orlin T, Rosas A & Scheinin M (eds) The Jurisprudence of Human Rights Law: A Comparative Interpretation
Approach (2000) Abo Akademi University Institute for Human Rights.

Liebenberg,
S ‘The Judicial Enforcement of Social Security Rights in South Africa:
Enhancing Accountability for the Basic Needs of the Poor’ In Riedel E (ed) Social Security as a Human Right: Drafting A
General Comment on Article 9 ICESCR (2006), Springer

Wesson M
‘Discrimination Law and Social Rights: Intersections
and Possibilities’ (2007) XIII Juridicata
International 74-82

Subject:Application to the ECtHR by mother in care
proceedings, claiming that her Article 6, 8 and 13 rights had been violated,
partly as a result of the involvement of the Official Solicitor.

Summary of the Decision:

I. Facts of the case

The first
applicant, RP, was a mother in care proceedings which concerned her child
KP. KP was born prematurely and suffered
from serious medical conditions. Due to concerns about RP's care of her child
the local authority issued care proceedings. A psychological assessment of RP
was undertaken following concerns raised by her counsel that RP lack capacity
to conduct the proceedings. As a result
of this assessment the Official Solicitor was appointed to act within the
proceedings for RP. The proceedings concluded with KP being placed for
adoption. At the final hearing RP's opposition to this was made known to the
court but the Official Solicitor did not oppose the making of care and
placement orders. RP's appeal to the Court of Appeal was rejected. She
subsequently commenced applications to set aside the placement order and in
relation to contact. She was considered to have capacity for these
applications. RP alleged that her article 6, 8 and 13 of the Convention were
violated by the court proceedings. Applications were also brought by RP's
mother, father and brother. The Equality
and Human Rights Commission intervened in the proceedings.

The court found that RP's article 6, 8 and 13 rights
were not violated and her family's rights were similarly not violated.

II. The basic considerations of the case

Article 6 reads
as follows: “1.In the determination of
his civil rights and obligations or of any criminal charge against him,
everyone is entitled to a fair and public hearing within a reasonable time by
an independent and impartial tribunal established by law. Judgment shall be
pronounced publicly but the press and public may be excluded from all or part
of the trial in the interest of morals, public order or national security in a
democratic society, where the interests of juveniles or the protection of the
private life of the parties so require, or the extent strictly necessary in the
opinion of the court in special circumstances where publicity would prejudice
the interests of justice. 2. Everyone charged with a criminal offence shall be
presumed innocent until proved guilty according to law. 3. Everyone charged
with a criminal offence has the following minimum rights: (a) to be informed
promptly, in a language which he understands and in detail, of the nature and
cause of the accusation against him; (b) to have adequate time and the
facilities for the preparation of his defence; (c) to defend himself in person
or through legal assistance of his own choosing or, if he has not sufficient
means to pay for legal assistance, to be given it free when the interests of
justice so require; (d) to examine or have examined witnesses against him and
to obtain the attendance and examination of witnesses on his behalf under the
same conditions as witnesses against him; (e) to have the free assistance of an
interpreter if he cannot understand or speak the language used in court.” The
majority of Convention violations that the Court finds today are excessive
delays, in violation of the "reasonable time" requirement, in civil
and criminal proceedings before national courts, mostly in Italy and France.
Under the "independent tribunal" requirement, the Court has ruled
that military judges in Turkish state security courts are incompatible with
Article 6. Another significant set of violations concerns the
"confrontation clause" of Article 6 (i.e. the right to examine
witnesses or have them examined). In this respect, problems of compliance with
Article 6 may arise when national laws allow the use in evidence of the
testimonies of absent, anonymous and vulnerable witnesses. The outcome in this
case is perhaps not hugely surprising. If it had been otherwise, the system of
representation in England and Wales for those lacking litigation capacity and
who do not otherwise have the benefit of a litigation friend would have
collapsed. However, three points of significance arise: 1) This is only the
most recent of the cases in which the Court has construed the ECHR by reference
to the UN Convention on the Rights of Disabled Persons; 2) The Court placed
considerable emphasis upon the steps taken to explain to RP the ways in which
she could seek to challenge the appointment of the Official Solicitor; it
therefore left open the possibility that a failure on the part of the
particular individuals appointed to act on the part of the protected party
(whether that be RP or another party to the litigation) to convey the necessary
information in an appropriate form would give rise to a breach of Article 6(1);
3) The endorsement of the proposition that ‘acting in the best interests’ of a
protected party does not require advancing every argument that party wishes to
be relayed to the Court is of assistance, although it is necessary to ensure
that where the protected party has a particularly important stake in the
outcome of the proceedings that their views are appropriately conveyed to the
Court. This is particularly so where the protected party is RP him or herself
(rather than, as in RP’s case, a protected party other than the subject of the
litigation). In such circumstances, it is suggested that, even if not formally
advanced by way of argument to the Court, RP’s views must clearly and fully put
before the Court so as to comply the duty to safeguard their rights under
Article 6(1) ECHR.

The European Court of Human Rights, furthermore,
determined: 1. The decision to involve the Official Solicitor was taken after a
thorough assessment by a consultant clinical psychiatrist and, in practice,
further assessment was undertaken of her capacity during the proceedings. 2.
Further there was a means for RP to challenge the involvement of the Official
Solicitor even though those proceedings fell short of a formal appeal. 3. It
was not practical for there to be regular reviews of capacity within the court
process as this would cause delay. 4. The Official Solicitor was not obliged to
advance any argument RP wished but he should (and did) make her views known to
the court.

Adjudication method: Reference to domestic law of United Kingdom in conjunction with the
reference to international law.

Reference to other constitutional courts: No.

Reference to International Law: Articles 6, 8, 12 and 41 of European Convention on
Human Rights

Relation with former jurisprudence/Innovative elements: The Court has followed its traditional adjudication
method and it referred to its former jurisprudence, i.e. McMichael v. the
United Kingdom, Blečić v. Croatia, Airey v. Ireland etc.

Related social rights: Right to a fair trial / Right to respect for private and family life.

Constitutional provisions: No.

Subject:The removal of a baby from its mother at birth by
means of an emergency protection order breached both mother and child's rights
under Article 8.

Summary of the Decision:

I. Facts of the case

P., born in
1958, is a United States national. C., the husband of P., was born in 1962, and
is a British national. S., their daughter, was born in 1998 and is a British
and American citizen. They all live in the United Kingdom. In 1985 P. gave
birth to B. In 1992 P. and her first husband, B.'s father, separated. In April
1994, the Californian authorities took B. into protective custody, alleging
that P. was harming B. by administering laxatives to him inappropriately. On 23
August 1994, the Californian court ordered that B. live with his father. P. was
convicted of a misdemeanour under the Californian Penal Code and, on 17
November 1995, was sentenced to three years' probation and ordered to spend
three months in custody, which was suspended. On 5 May 1996, the Californian
family court approved supervised contact between P. and her son B., once a
month for the following three years. During 1996, P. met C., a qualified social
worker with a doctorate concerning women wrongly accused of being Münchhausen's
Syndrome by Proxy (MSBP) abusers and C. married in September 1997 in the United
Kingdom. S. was born on 7 May 1998, at 4.42 a.m. The local authority obtained
an emergency protection order at about 10.30 a.m. which placed S. under their
care. At about 4 p.m., the social workers took S. from the hospital and placed
her with foster parents. Rochdale Metropolitan Borough Council then applied for
a care order under the Children Act 1989. In the meantime, P. and C., who were
allowed supervised contact with S., developed an excellent relationship with
her, according to the supervising officials. Initially P. was legally
represented in the care order proceedings. However, on 5 February 1999, her
lawyers applied to the judge to withdraw from the proceedings, alleging that P.
was requiring them to conduct the case in an unreasonable manner. The judge
permitted them to withdraw and allowed P. an adjournment of four days until 9
February 1999, at which point he refused any further adjournment. On 8 March
1999, after a hearing lasting about 20 days involving numerous witnesses, the
judge issued a care order placing S. in the care of the local authority,
finding that her moral and physical health would be endangered by leaving her
with her parents. The Court found that, although P. and C.'s treatment of S.
during contact sessions had been exemplary, P. had a personality disorder and
C. would not accept that P. was responsible for harming B. After making the
care order, the judge fixed the hearing of the application for the freeing of
S. for adoption for one week later on 15 March 1999. P. and C. attended the
hearing but did not have legal representation. The judge refused the
application of P. for the proceedings to be deferred to allow her to obtain
legal representation and issued an order freeing S. for adoption without any
provision for continued direct contact between S. and her parents. Leave to
appeal was refused and S. was adopted on 27 March 2000. The last contact visit
between the P., C. and S. was on 21 July 1999.

Complaint under Article 6 upheld. The Court observed
that in the light of the complexity of the care proceedings, along with the
importance of what was at stake and the highly emotive nature of the subject
matter, it was essential that P received legal assistance. The complaints under
Article 8 were also upheld. Whilst the Court acknowledged that it had been
proper for the local authority in its child protection function to take steps
to obtain an emergency protection order, nevertheless the removal of a baby
from its mother at birth required exceptional justification. Therefore there
had been a breach of Article 8. In the light of its findings under Article 6,
the Court concluded that the procedural shortcomings of the care and adoption
proceedings also breached the due process element in Article 8. The Court held
that no separate issue arose under Article 12.

II. The basic considerations of the case

This judgment
gives some new ammunition to parents contesting care and adoption proceedings
and creates something of a dilemma for the domestic courts. The question of
expedition in family proceedings where young children are involved by
definition involve due process difficulties which rebound on the parents. The
Court here criticised the domestic courts for failing to give due weight to the
fact that the child herself was in successful foster placement and therefore
unaffected by the ongoing proceedings. An adjournment of the adoption hearing
therefore could have been considered and should have been granted, given the
circumstances. However the it is never going to be obvious whether the child
involved will be prejudiced by delay or not; it is a matter of degree, and when
one adjournment is granted there is no reason in principle why others should
not be, and then the whole course of the decision making process which is
determinative of the child's future may be ground down by a series of
infintisemal delays, none of which, when considered in isolation, would be
prejudicial of the child's welfare. The same applies to the making of an
emergency care order. Again, with the benefit of hindsight, the Strasbourg
Court was able to posulate a less draconian alternative to the immediate
removal of the child; that she should have been allowed to remain in the
hospital and to spend "at least some time with her mother under
supervision". However the local authority had to make a speedy decision in
the circumstances of what they knew about P; a woman who had apparently
administered laxatives in an "inappropriate" fashion to her previous
child, and who was known to be suffering from a psychiatric disorder which
prompts sufferes to exaggerate and fabricate illnesses in their children,
sometimes resulting in the deliberate infliction of harm on those children. How
these misgivings are to be reflected in local authority policy whilst
protecting them from the sort of challenge mounted in Z v United Kingdom -
where their failure to act amounted to a breach of Article 3 - is not so easy
to assimilate either from the W or the instant judgment.

The European Court of Human Rights therefore examines whether
it is violation of applicant’s rights to protection of health and the rights
and freedoms of others according to article 8 § 2 of European Convention on
Human Rights.

Adjudication method: Reference to domestic law of United Kingdom in conjunction with the
reference to international law.

Reference to other constitutional courts: No.

Reference to International Law: Articles 6, 8, 12 and 41 of European Convention on
Human Rights

Relation with former jurisprudence/Innovative elements: The Court has followed its traditional adjudication
method and it referred to its former jurisprudence, i.e. Z. v. United Kingdom.

Key words: Right to a fair trial, Fair hearing, Access to court, Civil proceedings,
Right to respect for private and family life, Respect for family life, Interference,
Necessary in a democratic society, Protection of health, Protection of the
rights and freedoms of others.

Related social rights: Right to respect for private and family life / Right to liberty and
security.

Constitutional provisions: No.

Subject:The applicants complained that the facts of the case
gave rise to a breach of Articles 8, 5 § 1, 3 and 41 of the Convention.

Summary of the Decision:

I. Facts of the case

A
fourteen-year-old who became pregnant as a result of rape encountered much
difficulty seeking legal abortion. She and her mother were given false
information regarding the procedural requirements of obtaining an abortion;
pressured by doctors, religious personnel and anti-abortion activists to change
their minds; and, denied abortion without receiving referrals by doctors
invoking conscientious objection. When
an abortion was finally arranged by the government, the procedure took place in
a clandestine manner and without proper post-abortion care.

The government of Poland was found to have violated
its positive duty to safeguard the respect for the teenager’s and her mother’s
private life when it failed to ensure their effective access to legal
abortion. The teenager’s right to respect
for her private life was further breached when her health and other personal
information was unlawfully released to the press by a public hospital. The Court also found a violation of the
teenager’s right to liberty when the government placed her under state custody
for the primary purpose of preventing the abortion. Considering the teenager’s entire experience,
especially having regard to her young age, the Court further held that the
government had infringed her right to be free from inhuman or degrading
treatment.

II. The basic considerations of the case

Most countries
in the European Union allow abortion on demand during the first trimester.
After the first trimester, abortion is allowed only under certain
circumstances, such as risk to woman's life or health, fetal defects or other
specific situations that may be related to the circumstances of the conception
or the woman's age. For instance, in Austria, second trimester abortions are
allowed only if there is a serious risk to physical health of woman (that
cannot be averted by other means); risk to mental health of woman (that cannot
be averted by other means); immediate risk to life of woman (that cannot be
averted by other means); serious fetal impairment (physical or mental); or if
the woman is under 14 years of age. Some countries, such as Denmark, allow
abortion after the first trimester for a variety of reasons, including
socioeconomic ones, but a woman needs an authorization to have such an
abortion.

It should be
noted that the access to an abortion in much of Europe depends not as much on
the letter of the law, but on the prevailing social views which lead to the
interpretation of the laws. For instance, in parts of Europe, laws which allow
a second trimester abortion due to mental health concerns (when it is deemed
that the woman's psychological health would suffer from the continuation of the
pregnancy) have come to be interpreted very liberally, while in other
conservative areas it is difficult to have a legal abortion even in the early
stages of the pregnancy due to the policy of conscientious objection, under
which doctors are allowed to refuse to perform an abortion if it is against
their moral or religious convictions.

Most European
countries have laws which stipulate that minor girls need their parents'
consent or that the parents must be informed of the abortion. In most of these
countries however, this rule can be circumvented if a committee agrees that the
girl may be posed at risk if her parents find out about the pregnancy, or that
otherwise it is in her best interests to not notify her parents.

The European
Court of Human Righs has faced another similar case. A, B and C v Ireland is a landmark case of the European Court of Human Rights on the right
to privacy under article 8 ECHR. It held there is no right for women to an
abortion, although it found that Ireland had violated the Convention by failing
to provide an accessible and effective procedure by which a woman can have
established whether she qualifies for a legal abortion under current Irish law.
The Court held that "Article 8
cannot... be interpreted as conferring a right to abortion". However,
in the present case, the Court held that there was violation of article 8, as
the government of Poland didn’t safeguard the respect for the teenager’s and
her mother’s private life when it failed to ensure their effective access to
legal abortion.

The European Court of Human Rights therefore examines whether
it is violation of applicant’s right to liberty and security according to article
5 of European Convention on Human Rights.

Adjudication method: Reference to domestic law of Poland in conjunction with the reference
to international law.

Reference to other constitutional courts: No.

Reference to International Law: Articles 3, 5, 8 and 41 of European Convention on
Human Rights

Relation with former jurisprudence/Innovative elements: The Court has followed its traditional adjudication
method and it referred to its former jurisprudence, i.e. A, B and C v. Ireland,
Aerts v. Belgium, Airey v. Ireland, Aquilina v. Malta etc.

Bibliography: European Center for Law and Justice, "A. B. C. Irish abortion
case: No human right to abortion under the Convention, says the European Court
of Human Rights", Press release 16.12.2010.

Key words: Prohibition of torture, Degrading treatment, Inhuman treatment, Right to
liberty and security, Deprivation of liberty, Educational supervision, Right to
respect for private and family life, Positive obligations, Respect for private
life, Prescribed by law

Related social rights: Right to health / Right to childhood / Right to respect for private and
family life.

Constitutional provisions: No.

Subject:Relying on Articles 2, 3, 5 and 8 of the Convention,
the applicants complained of the military raid conducted on 20 February 1993 on
the village of Ormaniçi and related events, including the death of two
children, the taking into detention of the male villagers, the conditions in
which these villagers were held in detention, their treatment in detention and
the death of one villager in detention. The applicants further alleged a
violation of former Article 25 (now Article 34) and former Article 28 of the
Convention (now 38).

Summary of the Decision:

I. Facts of the case

The case, which
was lodged with the former European Commission of Human Rights by 32 Turkish
nationals in April 1993, mainly concerns events which took place in 1993 in the
village of Ormaniçi in the Güçlükonak district of the Sirnak province in
south-east Turkey. The applicants alleged that, on 20 February 1993, security
forces looking for members of the PKK (proscribed as a terrorist organisation
under Turkish law) had attacked Ormaniçi, as a result of which two children had
died. The applicants further alleged that on the same day the security forces
had set fire to houses in Ormaniçi and had taken most of the male villagers into
detention. The applicants claimed that these men had been subjected to
ill-treatment in detention, resulting in various serious injuries and the death
of one villager. According to the Government, security forces had come under
fire from the village. No houses had been deliberately burned and nobody had
been injured or killed in Ormaniçi on 20 February 1993. Moreover villagers
taken into detention had not been ill-treated. The facts being disputed by the
parties, the former European Commission of Human Rights appointed Delegates who
took evidence in Ankara from 2 to 4 April 1998 and from 5 to 10 October 1998
from 25 applicants, 8 other villager witnesses and 15 officials. The certified
transcripts of the oral evidence and the documentary evidence provided by the
parties to the Commission were forwarded to the Court, when the case was
transmitted to it on 1 November 1999. A full description of the facts as
assessed by the Court is to be found in the text of the judgment, which may be
consulted on the Court's Internet site.

The Court accepted that, in the circumstances of the
present case, the security forces' choice to open intensive fire on Ormaniçi in
response to shots fired at them from the village had been "absolutely
necessary" for the purpose of protecting life. It followed that there had
been no violation of Article 2 in this respect. Furthermore, the Court found
that the decision by the security forces to conduct a systematic search of the
village, including assembling in the village square all the persons found,
could not be regarded, in the circumstances and as such, as amounting to
treatment or punishment in violation of Article 3 of the Convention.

II. The basic considerations of the case

In the cases
relating to south – eastern Anatolia, where the existence of an armed conflict
was disputed, it appears that at least when the Court was faced with a real
combat situation, as opposed to a law – enforcement operation, it never took
the lives of ‘combatants’ into account when assessing proportionality. In this
case, the Court accepted that the Turkish security forces’ tactical reaction to
the initial shots fired at them from a nearby village, and consisting in
‘intensive firing, including the use of RPG – 7 missiles and various grenades
that were fired at perceived points of fire in the village’, could not be
regarded as ‘entailing a disproportionate degree of force’. Even, in Gül, where the Court was arguably faced with a mere law –
enforced operation designed to search for alleged terrorists, the decision of
the Turkish officers to open fire with automatic weapons, in reaction to the
sound of a door bolt being drawn back in the mistaken view that they were about
to come under fire by terrorists, was found to be ‘grossly disproportionate’ in
view of the fact that the operation took place ‘in a residential block
inhabited by innocent civilians, women and children’. Moreover, in this as in
the other cases relating to anti – terrorist operations in south – eastern
Anatolia, the qualification of the victim as a ‘terrorist’ was at issue. In
case, where the Court accepted, despite the absence of a state of emergency,
that the situation called for exceptional measures by the state in order to
regain control over the region and to ‘suppress the illegal armed insurgency’,
the question was always that of the risk posed to the lives of innocent
‘civilians’.

But, even
leaving aside the issue of the relevance of life of ‘combatants’ in order to
assess proportionality, it could be argued, in addition, that the principle of
proportionality is stricter in International Human Rights Law than in
International Humanitarian Law, inasmuch as it requires reducing casualties to
a minimum, whereas International Humanitarian Law only requires avoiding
excessive incidental damage. But, since strict proportionality does not imply
that ‘incidental damages’ are not acceptable, this perceived difference appears
to be rather relative.

In this case,
the Court stated that under Article 2, read in conjunction with Article 1,
ECHR, a state’s responsibility may be engaged in all case where state agents
‘fail to take all feasible precautions in the choice of means and methods of a
security operation mounted against an opposing group with a view to avoiding
and, in any event, to minimizing, incidental loss of civilian life’.

The European Court of Human Rights therefore examines:
(1) whether it is violation of applicant’s right to private and family life
according to article 8 of European Convention on Human Rights and (2) whether
there were tortures in breach of Article 3 of European Convention on Human
Rights.

Adjudication method: Reference to domestic law of Turkey in conjunction with the reference
to international law.

Relation with former jurisprudence/Innovative elements: The Court has followed its traditional adjudication
method and it referred to its former jurisprudence, i.e. Akdivar and Others v.
Turkey, Aksoy v. Turkey, Aktas v. Turkey etc.

Bibliography: Orna Ben – Naftali (2011), International Humanitarian Law and
International Human Rights Law, Oxford, New York: Oxford University Press.

Related social rights: Prohibition of slavery and forced labour / Protection of childhood.

Constitutional provisions: No.

Subject:Relying on Article 4 (prohibition of forced labour) of
the European Convention on Human Rights, the applicant submitted that French
criminal law did not afford her sufficient and effective protection against the
"servitude" in which she had been held, or at the very least against
the "forced and compulsory" labour she had been required to perform,
which in practice had made her a domestic slave.

Summary of the Decision:

I. Facts of the case

The victim arrived
in France on 26 January 1994, aged 15 years and 7 months, with Mrs D., a French
national of Togolese origin. The victim had a passport and a tourist visa.
Initially the victim was promised that she would work at Mrs D.’s home until
the cost of her air ticket had been reimbursed and that Mrs D. would attend to
her immigration status and find her a place at school, though in reality the
victim became an unpaid housemaid for Mr and Mrs D. and her passport was taken
from her. In the second half of 1994, Mrs D. lent the victim to Mr and Mrs B.
and then the victim started working for Mr and Mrs B. The victim worked seven
days a week, without a day off, from early morning to late evening. The victim
was never paid, except by Mrs B.’s mother, who gave her one or two 500 French
franc notes. One day the victim escaped from their house, but she returned as
they promised to keep their initial words. However, the situation remained
unchanged. One day, the victim reached a neighbour who contacted the police. On
28 July 1998, the police raided Mr and Mrs B.’s home.

The Court held that there has been a violation of
Article 4 of the Convention and awarded the applicant 26,209.69 euros (EUR) for
costs and expenses. As Ms Siliadin had made no claim for compensation in
respect of damage sustained, the Court made no award.

II. The basic considerations of the case

1. a) Considering
the case, the Court examined the definitions of the terms «slavery»,
«servitude» and «forced labour», as contained in the wording of article. It attempted
to interpret them, drawing a distinction among various treatments that fall
within the scope of each one of the three terms. To define slavery and examine
the practices that identify as such, the Court used as a tool the definition of
slavery provided in the 1926 Slavery Convention (and article 32 of Convention
on the Rights of the Child about child labour). According to article 1, slavery
is defined as: «the status or condition of a person over whom any or all of the
powers attaching to the right of ownership are exercised». Interpreting this
definition strictu sensu, it used the
element of ownership as the sole indication of enslavement. On this basis, it
held that the deprivation of personal autonomy does not in itself constitute
exercise of the right of ownership and therefore is not enough to determine the
status of slavery. Examining the scope of article 4 in relation to the
particular facts of the case, it held that the applicant’s treatment fell short
of slavery because her perpetrators did not fully exercise upon her the right
of ownership. However, the Court acknowledged that the treatment of the victim
amounted to servitude, because she was deprived of her autonomy and had been
submitted to coercion. Furthermore, the applicant was subsequently forced to
work against her will, living in a state of fear due to her illegal status in
the country of destination and her young age.
Therefore, according to the Court she was also submitted to forced
labour.

1. b) Furthermore,
the Court stressed that the various provisions of the Convention must be
interpreted as a whole in conformity with its object and purpose. Referring to
its own jurisprudence, it underlined that the Convention is a “living
instrument” and should be “interpreted in the light of present-day conditions”.
Thus, taking into account that trafficking in human beings is a severe
violation of human rights, the identification of the treatment of a victim of
trafficking as slavery or servitude or forced labour was considered
“unnecessary”. Notwithstanding the absence of explicit reference to trafficking
in human beings in article 4, the Court stressed that “Trafficking itself,
within the meaning of Article 3(a) of the Palermo Protocol and Article 4(a) of
the Anti-Trafficking Convention, falls within the scope of Article 4 of the
Convention.” When defining the content of the states’ obligations, the Court
admitted that the standards of human rights protections “require greater
firmness in assessing breaches of the fundamental values of democratic
societies” stressing the need to broaden its standards of interpretation of the
guarantees safeguarded in the Convention. In Rantsev v. Cyprus and Russia, the
Court confirmed its ruling in Siliadin v. France on the issue of the states’
positive obligations deriving from article 4.

The European Court of Human Rights therefore examines whether
it is a violation of applicant’s right to education according to article 19 of
Convention on the Rights of the Child.

Adjudication method: Reference to domestic law of France in conjunction with the reference
to international law.

Reference to other constitutional courts: No.

Reference to International Law: Recommendation 1523 (2001) of the Parliamentary
Assembly of the Council of Europe, dated 26 June 2001, Articles 2 and 4 of Forced
Labour Convention, adopted on 28 June 1930 by the General Conference of the
International Labour Organisation, Article 1 of Slavery Convention, signed in
Geneva on 25 September 1926, which came into force on 9 March 1927, Article 1
of Supplementary Convention on the Abolition of Slavery, the Slave Trade, and
Institutions and Practices Similar to Slavery, adopted on 30 April 1956,
Articles 19 and 32 of International Convention on the Rights of the Child,
dated 20 November 1989.

Relation with former jurisprudence/Innovative elements: The Court has followed its traditional adjudication
method and it referred to its former jurisprudence, i.e. A. v. the United
Kingdom, Airey v. Ireland, Amuur v. France, Association Ekin v. France (dec.), August
v. the United Kingdom (dec.) etc.

Bibliography: Kyriazi, T. (2010). A Human Rights Approach to Human Trafficking by the
ECtHR - Written for Sustainable Development Group International, Available at: http://www.sdg-int.org/uploads/trafficking-tenia.pdf
[Accessed 07/01/2010].

Adjudication method:The European Committee of
Social Right examines the case in the light of European Social Rights, as
described in the 1961 Charter. Each allegation of violations is examined
separately, in order for the Committee to ascertain if there is a violation of
the specific Article or not. Furthermore, the Committee examines the two
Articles of the Greek Act No. 3863/2010 separately, so as to ensure that each
right is protected properly.

Reference to other constitutional courts: No.

Reference to International Law: No.

Relation with former jurisprudence/Innovative elements: The Committee has followed its traditional method.
The case underlines the importance of the respect of social rights and the
protection of employers, even when the economic circumstances of the State
require reduction of those protections. Although the decision is not mandatory
for the parties, it is a serious indication that European Union supports and
protects social rights, reprobating their violation and pointing out the
importance of their protection, especially in a period of economic crisis, when
these are mostly needed.

Key words: Right to work, Right to children and young persons
to protection, Right to vocational training, Right to social security, Right to
a fair remuneration, Right to non-discrimination, Protection of social rights
in economic crisis.

Related social rights: Right to work/ Right to children and young persons to protection/ Right
to vocational training/ Right to social security/ Right to a fair remuneration/
Right to non-discrimination.

Constitutional provisions: No.

Subject:Application of the European’s social rights
legislation on the labour law provisions, concerning lower wages to employers
under 25 years old by the Greek Government, in order to integrate younger
workers into the labour market in a time of serious economic crisis.

Summary of the Decision:

I. Facts of the case:

Greece has been
suffering a severe economic crisis since 2009. Eurogroup Ministers, on 2 May 2010, concurred with the Commission and
the European Central Bank to provide a loan to Greece in order to safeguard
financial stability in Greece and in Eurozone as a whole. A financial package
of 110€ billion was decided in order to help Greece meet its financing needs,
with the contribution of the IMF, along with a memorandum, a legal arrangement
in a form of a legislative instrument. The loan was provided to Greece as a part
of a general agreement related to the decision making in structural issues. The
troika, which consists of representatives from the Eurozone, the European
Central Bank and the International Monetary Fund, sets the goals that the Greek
government has to accomplish in order to disburse each loan installment. Under
these circumstances, the Greek Government is obliged to take severe measures,
regarding social rights. As a part of a general reconstruction of the labour law,
the provision contained in Act No. 3863 of 15 July 2010, introducing “special
apprenticeship contracts” between employers and individuals aged 15 to 18 and
the provisions concerning the employment of new entrants to the labour market
aged under 25 violates basic social rights, according to the applicant, which
is the General Federation of employees of the national electric power
corporation (GENOP-DEI) and the Confederation of Greek Civil Servants’ Trade
Unions (ADEDY).

The European Committee of Social Rights has decided
that these provisions do not comply with the requirements following from
Article 7.7, 10.2, 12.3 of the 1961 Charter and that there is also a violation
of Article 4.1 of the 1961 Charter in the light of the non-discrimination
clause of the Preamble to the 1961 Charter.

II. The basic considerations of the case:

1) The Committee
recognises that states enjoy a wide margin of appreciation when it comes to the
design and implementation of national employment policies, especially when they
are under the pressure of economic crisis. Though, the economic crisis should
not have as a consequence the reduction of the protection of the rights
recognised by the Charter. Hence, governments are bound to take all necessary
steps to ensure that the rights of the Charter are effectively guaranteed at a
period of time when beneficiaries most need the protection.

2) Apprenticeship
is defined by the Committee with Article 10.2 of the 1961 Charter as involving
“training based on a contract between the young person and the employer” which
is regulated by a body of rules which govern the length of the apprenticeship,
the division of time between practical and theoretical learning, the manner in
which apprentices are selected, the selection and qualifications of trainers;
the remuneration of apprentices; and termination of the apprenticeship
contract. Other training arrangements can also be implemented, as long as they
combine both theoretical and practical vocational training and maintain close ties
between training establishments and the working world. However, that kind of
arrangements must be governed by a coherent framework of rules, which regulate
the relationship between workplace experience and educational provision.

3) The Committee
recognises the necessity and the power of each state to introduce measures to consolidate
public finances in times of economic crisis, in order to ensure the maintenance
and sustainability of the existing social security system. However, any such
measures should not undermine the core framework of a national social security system
or deny individuals the opportunity to enjoy the protection it offers against
serious social and economic risk. Therefore, any changes to a social security system
must maintain a sufficiently extensive system of compulsory social security and
refrain from excluding entire categories of worker from the social protection.

4) The Committee
considers a wage to be fair, when it is above the state’s poverty line. In
addition, in principle a wage must not fall below 60% of the national average
wage, unless a state is able to demonstrate that the wage is sufficient for a
decent standard of living, by providing, for example, detailed information on
the cost of living. However, a net wage which is less than half the net
national average wage will be deemed to be unfair. When a national minimum wage
exists, its net value is used as a basis for comparison with the net average
wage. The yardstick for comparison is otherwise provided by the minimum wage
determined by collective agreement.

5) The Committee
states that any allegation of discrimination related to the implementation of
Article 4.1 of the 1961 Charter can only be read in the light of the
non-discrimination clause of the Preamble to the 1961 Charter. With this in mind, the Committee confronts
the allegation of a violation of Article 4.1 read in conjunction with Article
1.2 of the 1961 Charter as an allegation of a violation of Article 4.1 read in
the light of the Preamble to the 1961 Charter.

Taking in account the fact that Greece is suffering a
severe economic crisis, which demands many structural and legal alterations,
the Committee could not oversee the fact that this has led to the restriction
of some very important social rights.

The Committee has found that Article 74.9 of Act No.
3863/2010, referring to “special apprenticeship contracts” to be concluded
between employers and individuals aged 15 to 18, violates Article 7.7 of the
1961 Charter, since young persons are excluded from the scope of the labour
legislation and are not entitled to three weeks’ annual holiday with pay. It
also violates Article 10.2 of the 1961 Charter, since it does not provide for
an adequate system of apprenticeship and other systematic arrangements for training
young boys and girls in their various forms of employment. Moreover, the
Committee considers that the highly limited protection against social and
economic risks afforded to minors engaged in “special apprenticeship contracts”
under Article 74.9 of Act No. 3863/2010 has the practical effect of
establishing a distinct category of workers who are effectively excluded from the
general range of protection offered by the social security system at large and
that this represents a deterioration of the social security scheme which does
not fulfil the criteria to be compatible with Article 12.3 of the 1961 Charter.

In addition, Article 74.8 of Act No. 3863/2010,
regarding the fair remuneration, violates, according to the Committee, Article
4.1 of the 1961 Charter insofar as it provides for the payment of a minimum
wage to all workers below the age of 25, which is below the poverty level. On
the discrimination’s perspective, the Committee holds that there is a violation
of Article 4.1 of the 1961 Charter in the light of the non-discrimination
clause of the Preamble to the 1961 Charter. The Committee acknowledges that the
less favourable treatment of younger workers at issue is designed by the Greek
government, in order to give effect to a legitimate aim of employment policy,
namely to integrate younger workers into the labour market in a time of serious
economic crisis. However, the extent of the reduction in the minimum wage, and
the manner in which it is applied to all workers under the age of 25, is disproportionate,
even when taking into account the particular economic circumstances in
question.

Adjudication method:The European Committee of
Social Right examines the case in the light of European Social Rights, as
described in the 1961 Charter. Each allegation of violations is examined
separately, in order for the Committee to ascertain if there is a violation of
the specific Article or not. Furthermore, the Committee examines the two
Articles of the Greek Act No. 3863/2010 separately, so as to ensure that each
right is protected properly.

Reference to other constitutional courts: No.

Reference to International Law: No.

Relation with former jurisprudence/Innovative elements: The Committee has followed its traditional method.
The case underlines the importance of the respect of social rights and the
protection of employers, even when the economic circumstances of the State
require reduction of those protections. Although the decision is not mandatory
for the parties, it is a serious indication that European Union supports and
protects social rights, reprobating their violation and pointing out the
importance of their protection, especially in a period of economic crisis, when
these are mostly needed.

Key words: Right to work, Right to children and young persons
to protection, Right to vocational training, Right to social security, Right to
a fair remuneration, Right to non-discrimination, Protection of social rights
in economic crisis.

Related social rights: Right to vote/ Right to free expression of the people.

Constitutional provisions: Articles 1.1, 51.4 of Greek Constitution.

European provisions: Article 3 of Protocol No. 1.

Subject:The obligation of the European States to provide the
necessary means in order to ensure the implementation of the right to vote in
the national elections to their expatriates.

Summary of the Decision:

I. Facts of the case:

The applicants
are two Greek expatriates, who live and work permanently in France. Before the
Greek parliamentary elections in 16th of September 2007, the applicants
contacted the Greek Ambassador, in order to exercise their right to vote in the
forthcoming parliamentary elections from France. The Greek Ministry of Interior
replied that, although the Greek government would like to permit them to vote, that
was not possible, because there were no such rules laying down the conditions governing
the exercise of voting rights by Greek voters that live abroad. The applicants eventually
did not exercise their right to vote, since they did not travel to Greece for
the elections and it was impossible for them to vote from their residence.

The Chamber, in the first place, decided that Greece
violated Article 3 of Protocol No 1, based on the fact that, although the right
to vote for the Greeks who live abroad is properly constitutionally protected
in Article 51.4, the Greek Government should have enacted legislation giving
practical effect to voting rights for expatriates. The non-legislation was likely
to constitute unfair treatment of Greek citizens living abroad, in comparison
with those living in Greece, despite the fact that the Council of Europe had
urged member States to enable their citizens living abroad to participate to
the fullest extent possible to the electoral process.

The Grand Chamber, on the other hand, decided that
there was actually no violation of Article 3 of Protocol No 1.

II. The basic consideration of the case:

1a) Article 3 of
the Protocol No. 1 is of great importance, because it faces the right to vote
not only from the right of freedom’s perspective, but from the right of free
expression of opinion of people’s perspective, as well. The article provides a
wide range of choices, as far as the election procedures and the electoral
system that each member State wishes to implement. It is for the Court, though,
to examine, if this specific system meets the criteria of “free elections” held
at “reasonable intervals” “by secret ballot” and “under conditions that will
ensure the free expression of opinion of the people”. In the context of Article
3 of Protocol No.1, the primary obligation of the State is not one of
abstention or non-interference, as with the majority of civil and political
rights, but one of the adoption of positive measures (positive right) to “hold”
democratic elections.

1b) As far as
the right to vote for the expatriates is concerned, the Court has stated that,
although the institutions of Council of Europe invite their member States to
enable their citizens living abroad to participate to the fullest extent
possible to the electoral process, this may be subject to some restrictions,
justified by several factors: the fact that the expatriates are not aware of
the day to day problems of their home country, the fact that the non-residence
citizens have less influence on the election candidates and their programmes,
the fact that they decide for issues that will not be implemented on them and
the legitimate concern that the State may have to limit the impact of the
expatiates choice on the elections, especially when the number of the citizens
living abroad is considerable large, compared to the citizens living in the
State.

The Grand Chamber examines the case in the light of
the broader question as to whether Article 3 of Protocol No. 1 places States
under the obligation to introduce a system enabling expatriate citizens to
exercise their voting rights from abroad.

The Court states that the complaint does not concern
the recognition of expatriates’ right to vote. This right is sufficiently
recognised and protected in Article 51.4 of the Greek Constitution in
conjunction with Article 4 of Presidential Decree no. 96/2007. In order to
examine whether Article 3 of Protocol No. 1 requires the implementation of
measures to allow expatriates to exercise their right to vote from their place
of residence, the article should be interpreted with reference to the relevant
international and comparative law and to the domestic law of the country
concerned. None of the above mentioned legal instruments states that States are
under an obligation to enable citizens living abroad to exercise the right to
vote. Furthermore, the constitutional provision of Article 51.4 allows the
legislature to enable the exercise of the expatriates’ voting right, but it
does not oblige it to do so. Greek authorities have made several attempts to
give effect to Article 51.4 of the Greek Constitution, but they never manage to
succeed it.

The Court holds that the very essence of expatiates’
voting rights guaranteed in Article 3 of Protocol No. 1 has remained untouched.

Adjudication method: Reference to the Article 3 of Protocol No. 1 and interpretation in the
light of International Law, Comparative Law and Greek Law.

Reference to other constitutional courts: No.

Reference to International Law: Yes. Texts adopted by the Parliamentary Assembly of the Council of Europe {Resolution 1459 (2005) of
the Parliamentary Assembly of the Council of Europe, Recommendation 1714 (2005)
of the Parliamentary Assembly of the Council of Europe – Abolition of
restrictions on the right to vote}, texts adopted by the European Commission for
Democracy through Law (“the Venice Commission”) {Code of Good Practice in Electoral Matters
(Opinion no. 190/2002), 2006 report on electoral law and electoral
administration in Europe (Study no. 352/2005), 2010 report on out-of-country
voting (Study no. 580/2010)}, International Covenant on Civil and Political Rights, American
Convention on Human Rights, Human rights protection system based on the African
Charter.

Relation with former jurisprudence/Innovative elements: The Court has followed its traditional adjudication
method. However, it did diversify itself from the previous judge of the Chamber.

Related social rights: Respect for family life/ Respect for private life.

Constitutional provisions: Article 63 of Danish Constitution.

European provisions: Article 8 of Convention.

Subject:The obligation of the European States to provide the
necessary means in order to ensure the protection of the minors’ family and
private life, regarding their right to renew their residence permit, which they
lost because they had been sent abroad by their parents, against their will.

Summary of the Decision:

I. Facts of the case:

At the age of fifteen the applicant, a Somali girl who had been living
with her parents and siblings in Denmark since the age of seven, was sent
against her will to a refugee camp in Kenya by her father to take care of her
paternal grandmother. Two years later, when still a minor, she applied to be
reunited with her family in Denmark, but her application was turned down by
Danish immigration on the grounds that her residence permit had lapsed as she
had been absent from Denmark for more than twelve consecutive months. She was
not entitled to a new residence permit as, following a change in the law that
had been introduced to deter immigrant parents from sending their adolescent
children to their countries of origin to receive a more traditional upbringing,
only children below the age of 15, instead of 18, could apply for family
reunification. The immigration authority also considered that no special
circumstances existed in her case, as she had not seen her mother for four
years, her mother had agreed to her being sent to Kenya and she could continue
to live in Kenya with her grandmother or her grandmother’s family.

The Chamber decided that there was a violation of
Article 8 of the Convention and that the Danish Government should provide the
applicant with a residence permit, as well as with EUR 15,000 in respect of
non-pecuniary damage.

II. The basic considerations of the case:

1a) The essential
object of Article 8 of the Convention is to protect the individual against
arbitrary action by the public authorities. In the light of respect for the
individual’s family and personal life, the State must strike a fair balance
between the competing interests of the individual and of the community as a
whole. The State’s obligation can be stated either as a positive or as a
negative obligation. However, in a case which concerns family life as well as
immigration, the extent of the state’s obligation to admit to its territory
relatives of persons residing there can vary according to the particular
circumstances of the persons involved and the general interest. Though, as the
Court reiterates, for a sellted migrant, who has lawfully spent all or a major
part of his or her childhood and youth in a host country, very serious reasons
are required to justify expulsion. Furthermore, the Court has accepted in a
number of cases concerning young adults who had not yet founded a family on
their own, that their relationship with their parents and other family members
constitutes “family life”.

1b) The Danish
Aliens Act was amended with effect from 1 July 2004. The amendment of the Danish
Aliens Act, limiting the right to family reunification to children under 15
years instead of under 18 years, specifically to discourage the practice of
some parents of sending their children on “re-upbringing trips” for extended
periods of time in order to be “re-educated” in a manner that their parents
consider more consistent with their ethnic origins, as it was preferable in the
legislator’s view for foreign minors living in Denmark to arrive as early as possible and spend as many
of their formative years as possible in Denmark, is accessible and foreseeable by
the Court, as it pursues a legitimate aim.

The Court examines whether, in the
circumstances of the present case, the Denmark’s authorities’ refusal to
reinstate applicant’s residence permit was proportionate to the aim pursued by
the Aliens Act amendment and “necessary in a democratic society”. The Court observes
that the applicant had social, cultural and family ties in Denmark, since she
spent the formative years of her childhood and youth in Denmark, she speaks
Danish and received schooling in Denmark and her divorced parents and all her
siblings reside in Denmark. The Court agrees with the Danish authorities that the exercise of parental rights
constituted a fundamental element of family life and that the care and
upbringing of children normally and necessarily required that the parents decide
where the child should live. It states, though, that the fact that the
applicant was sent to Kenya by her father against her will and not by her best
interest is not to be ignored, especially regarding the right to respect for her
private and family life.Moreover, according to the Court, the fact that the
applicant had very limited contact with her mother over a four-year period
could be explained by various factors, including practical and financial
constraints, and could hardly lead to the conclusion that they did not wish to
maintain or intensify their family life together. Lastly, the Court notes that the
legislative amendment, that had reduced the age of entitlement to family
reunification from 18 to 15 years, could not be foreseeable by the applicant or
her parents when the decision to send the applicant to Kenya was taken or when
her residence permit expired. In these circumstances, it could not be said that
the applicant’s interests had been sufficiently taken into account or balanced
fairly against the State’s interest in controlling immigration and therefore
there is a violation of Article 8 of the Convention.

Adjudication method: Reference to the Article 8 of Convention and interpretation in the
light of European and Danish Law.

Reference to other constitutional courts: No.

Reference to International Law: No.

Relation with former jurisprudence/Innovative elements: The Court has followed its traditional adjudication
method. The case underlines the importance of the respect of family life and
the protection of the minors’ best interest against the State’s interest in
controlling immigration.

Bibliography: Randall Hansen,Patrick Weil, “Towards A European Nationality: Citizenship,
Immigration and Nationality Law in the EU”,

Related social rights: Right to equal payment, principle of legitimate expectations, principle
of proportionality, the principle of equality in the distribution of public
burdens, the principle of solidarity between generations.

Constitutional provisions: Article 13 and 281 of the Portuguese Constitution.

Subject:The deferred payment of Christmas’ gifts and holiday
bonuses or benefits corresponding to the 13th and 14th salary under the
provisions 21 and 25 of the Law of 30 December 64-B/2011 (Portuguese State
Budget of 2012) is hereby declared to be contrary to the principle of equality
the allocation of burdens under Article 13 of the Constitution of the
Portuguese Republic.

Summary of the Decision:

I. Facts of the case

A group of
Members of the Portuguese Parliamentary brought constitutional action under
Article 281 paragraph 2. Portuguese Constitution of 1976, seeking a declaration
of unconstitutionality of Articles 21 and 25 of the Law of 30 December
64-B/2011 (state budget of 2012) regarding the issue of suspension of payment
of Christmas gifts and holiday allowances and general benefits corresponding to
the 13th and 14th salary, for a number of reasons. First, because of measure’s
opposition to the legitimate expectations of the citizens, which derives from
Article 2 of the Portuguese Constitution and enshrined the principle of democratic
rule of law. Second, because of the violation of the principle of equality in
the distribution of public burdens in accordance with Article 13 of the
Portuguese Constitution. Thirdly and fourthly, because of the violation of the
principle of proportionality and the right to social security (Articles 2, 18,
19, 266, 272 and 63 of the Portuguese Constitution).

The Tribunal Constitucional de Portugal declared
unconstitutional for violating the principle of equality under Article 13 of
the Portuguese Constitution, the rules contained in Articles 21 and 25 of the
Act. 64-B/2011 of December 30 (Budget for 2012). Moreover, pursuant to Article
282 para. 4 of the Constitution of the Portuguese Republic, determined that the
effect of this declaration of unconstitutionality shall not apply to the
suspension of payment of the gift of Christmas and vacation bonuses, or any
corresponding benefits in wages correspond 13th and 14th months of the year
2012.

II. The basic considerations of the case

1. a) The
sentence starts saying something obvious, but perhaps little noticed by those
who contemplate such measures: the bonuses are tied to compensation paid work,
integrating the annual remuneration. Deemed or not less punitive than a
percentage reduction of monthly remuneration, as had occurred previously in the
Finance Act, 2011, held in 2012, the fact is that such suspension or reduction,
as appropriate, is a decrease of livelihoods of those affected by such
measures. In addressing the objection of unconstitutionality made ​​by the
applicants arguing a violation of the principle of equality of Article 13 of
the Constitution, the Constitutional Court of Portugal (TPC) points out that
the principle of equality in the distribution of public burdens, while that
expression of the principle of equality, should be considered when the
legislature decides to reduce the public deficit to safeguard the solvency of
the State. Interestingly, the perspective adopted by the TPC to consider the
consequences that flow from that principle of equality in the distribution of
public burdens, which obviously cannot be considered a constitutional
proclamation empty of content, which would happen if the legislature had full
freedom to decide who and how much are the citizens who must bear these burdens,
whether they cannot discuss the existence of a financial emergency.Moreover, in the case before the TCP, it is a way for the principle of
equal force deployment that provides the supreme rule in the budget document. Indeed,
analysing the TPC if the sacrifice that is set for this group is justified from
the perspective of equality of distribution of public burdens, cautions that
the biggest argument "average wages" in relation to private sector
workers, not is correct from this farmed game (invalid simply compared average
by sector, the measure was set according to individual compensation), or
justify the special sacrifice imposed on those affected, also taking into
account the different types of work and functions exercised, in the public
sector are not necessary same as in the private sector.

1. b) Furthermore,
TPC says the inequality justified by the difference in situations not immune to
a judgment of proportionality, since legal equality is always proportional
equality. Whereas the reduction of annual remuneration determined by such
measures may be up to 14.3%, its duration, and the cumulative effect that they
have given the salary reduction for this group occurred in 2011, and the
freezing of remuneration produced in 2010, 2011 and 2012, with the loss of
purchasing power due to inflation, the TCP considers evident that exceeds the
aforementioned without imposing sacrifices that have analysed the equivalent to
the generality of citizens receive income from other sources, regardless of
their studs. For TPC differential treatment is so intense that limits proportional
equality. Beyond the decision of the appeal that it is discussed, the judgment
is relevant because it applies constitutional principles and parameters that
can hardly have a different understanding in other countries, like Spain, are
adopting similar measures. In any case, we should consider urgently the crisis
that is leading to such measures as burdensome for public employees has not
been caused by this group, which cannot be the solution. It is worth reflecting
on the reasons that led to it has been seen as something natural, that public
officials end up being more identified victims of a situation they did not
create.

Adjudication method: Reference to constitutional rules in conjunction with the principle of
legitimate expectations, principle of proportionality, the principle of
equality in the distribution of public burdens and the principle of solidarity
between generations.

Reference to other constitutional courts: No.

Reference to International Law: No.

Relation with former jurisprudence/Innovative elements: The Court has followed its traditional adjudication
method without reference to former jurisprudence, but with detailing reference
to judges’ opinions.

Subject:The applicants in this case are a group of Moldovan
nationals - children of school-going age, their parents and teachers - who
suffered serious human rights violations in Transdniestria, part of the territory
of the Moldovan state and under the de facto control of the Russian-supported
local administration known as the Moldovan Republic of Transdniestria (MRT).

Summary of the Decision:

I. Facts of the case

According to
Article 12 of the Moldavian Republic of Transdniestria (MRT) “Constitution”,
the official languages within the MRT are “Moldavian”, Russian and Ukrainian.
Article 6 of the “MRT Law on languages”, which was adopted on 8 September 1992,
states that, for all purposes, “Moldavian” must be written with the Cyrillic
alphabet. On 18 August 1994 the “MRT” authorities forbade the use of the Latin
script in schools. By a decision of 21 May 1999, the “MRT” ordered that all
schools belonging to “foreign States” and functioning on “its” territory had to
register with the “MRT” authorities, failing which they would not be recognised
and would be deprived of their rights. On 14 July 2004 the “MRT” authorities
began taking steps to close down all schools using the Latin script. At the
date of adoption of the admissibility decision, there remained only six schools
in Transdniestria using the Moldovan/Romanian language and the Latin script.

The European Court of Human Rights held that the facts
complained of by the applicants fall within the jurisdiction of the Republic of
Moldova and the jurisdiction of the Russian Federation, and dismisses the
Russian Federation’s preliminary objection; that there has been no violation of
Article 2 of Protocol No. 1 to the Convention in respect of the Republic of
Moldova; that there has been a violation of Article 2 of Protocol No. 1 to the
Convention in respect of the Russian Federation; that it is not necessary to
examine separately the applicants’ complaints under Article 8 of the
Convention; that it is not necessary to examine separately the applicants’
complaints under Article 14 of the Convention, taken in conjunction with either
Article 2 of Protocol No. 1 or Article 8.

II. The basic considerations of the case

1. a) According
to the Article 2 of the First Protocol of European Convention of Human Rights “no one can be denied the right to
education”. This encompasses a
right: to an effective education (that is adequate and appropriate); to access
to existing educational institutions; to be educated in the national language;
and to obtain official recognition when studies have been completed. This does
not require the State to establish new types of education, rather it gives
individuals a right to access educational facilities that already exist. This
does not require the State to establish new types of education, rather it gives
individuals a right to access educational facilities that already exist. If a
pupil is excluded from school the exclusion must be both necessary and
proportionate. The right extends to primary, secondary as well as higher
education. The right belongs to the
student, who must not be denied the right to education (and not their parent). The
right to education includes a freedom to set up private schools, but this
freedom is subject to regulation by the State to ensure there is a proper
educational system, and does not include a right to subsidies for providing
that education. In this case the applicants complained that the prohibition of
Latin script is a violation of their right to education. However, this aspect
is not one of the cases of Article 2. At this point, neither the corresponding parents’
right is protected.

1. b) Another
serious issue is the matter of jurisdiction. It is noteworthy that a public
international law issue is the stepping stone of the decision about right of
education. Especially, the question of succession of states is the major
problem in this case. Succession may refer to the transfer of rights,
obligations, and/or property from a previously well-established prior state (the
predecessor state) to the new one (the successor state). Transfer of rights,
obligations, and property can include overseas assets, participation in
treaties, membership in international organizations, and debts. Often a state
chooses piecemeal whether or not it wants to be considered the successor state.
A special case arises, however, when the predecessor state was signatory to a
human rights treaty, since it would be desirable to hold the successor state
accountable to the terms of that treaty, regardless of the successor state's
desires. A difficulty arises at the dissolution of a larger territory into a
number of independent states. Of course, each of those states will be subject
to the international obligations that bound their predecessor. What may become
a matter of contention, however, is a situation where one successor state seeks
either to continue to be recognised under the same federal name of that of its
predecessor or to assume the privileged position in international organisations
held by the preceding federation. In the above case, Moldovan schools were
first established in Transnistria after the 1924 formation of the Moldovan
Autonomous Soviet Socialist Republic, which was part of the Soviet Republic of
Ukraine. In 1940 the former Moldovan Autonomous Republic was split, 8 districts
were included in the Soviet Socialist Republic of Ukraine and 6 districts were
joined with part of Basarabia in the Soviet Socialist Republic of Moldavia. In
the Ukrainian part of the former Moldavian autonomy Moldovan schools were
transformed into Russian-language schools, but in the 6 districts that remained
part of the Soviet Socialist Republic of Moldova a Moldovan-language network of
schools was kept. However, according to the Court, the facts complained of by
the applicants fall within the jurisdiction of the Republic of Moldova and the
jurisdiction of the Russian Federation.

The European Court of Human Rights therefore examines whether
it should examine a violation of private and family life under Article 8 of the
Convention.

Adjudication method: Reference to domestic law of Moldavian Republic in conjunction with
the reference to international law.

Reference to other constitutional courts: No.

Reference to International Law: Protocol 1 of European Convention of Human Rights, Annual
Report for 2004 of the Organisation for Security and Co-operation in Europe, Universal
Declaration of Human Rights, Convention against Discrimination in Education, International
Covenant on Economic, Social and Cultural Rights, International Convention on
the Elimination of All Forms of Racial Discrimination, Convention on the Rights
of the Child

Relation with former jurisprudence/Innovative elements: The Court has followed its traditional adjudication
method and it referred to its former jurisprudence, i.e. Al-Adsani v. the
United Kingdom, Artico v. Italy, Assanidze v. Georgia, etc.

Bibliography: Liberty – Protecting Civil Liberties Promoting Human Rights, Article 2
of the First Protocol: Right to Education, Available at:

Related social rights: Right to liberty and security / Right to a fair trial / Freedom of
expression / Freedom of assembly and association.

Constitutional provisions: No.

Subject:The applicants complained that their arrest,
conviction for breach of public order and contempt of court, and subsequent
punishment by deprivation of liberty, had been unlawful and unfair, in breach
of Article 5 § 1 (right to liberty and security) and Article 6 §§ 1 and 3 (c)
(right to a fair trial). They further complained that their arrest and
detention had violated their rights under in particular Articles 10 (freedom of
expression) and 11 (freedom of assembly and association). Finally, relying on
Article 2 of Protocol No. 7 (right of appeal in criminal matters), they
complained that they had had no right of appeal against their conviction.

Summary of the Decision:

I. Facts of the case

The NGO
‘Equality Institute’ monitors the penal and law-enforcement authorities and
promotes the independence of the judiciary in Georgia. In June 2006, the
Equality Institute held a demonstration outside the Tbilisi Court of Appeal to
express support for Shalva Ramishvili and Davit Kokhreidze, who were on trial
for conspiracy to commit extortion, after they were blackmailed to not air a
documentary which had negative implications for a parliamentarian from the presidential
political party. The demonstrators, using a megaphone, chanted slogans such as
“we should not have political prisoners in Georgia”. They were then restrained
by force by court bailiffs and arrested for ‘breaching public order’ for
‘contempt of court, insults, disregard of the bailiffs’ lawful orders to stop
the wrongdoing.’ The President of the Tbilisi Court of Appeal sentenced them to
thirty days’ detention, on the basis of the bailiffs’ statements alone and
without an oral hearing. Attempts to appeal to the Supreme Court proved
ineffective in securing their release.

The European Court of Human Rights found Georgia to
have violated the right to liberty, fair trial and freedom of assembly in
respect of five members of the NGO ‘Equality Institute’, who were detained
following a demonstration in 2006. The Court found breaches of Articles 5, 6,
11 and Article 2 of Protocol 7 and awarded the applicants 3,000 EUR each in
damages.

II. The basic considerations of the case

1. a) According
to article 5 § 1 of the European Convention on Human Rights: “Everyone has the right to liberty and
security of person. No one shall be deprived of his liberty save in the following
cases and in accordance with a procedure prescribed by law…”. Paragraph 1
of Article 5 of the European Convention on Human Rights points to there being a
presumption that everyone should enjoy liberty and that, therefore, a person
can only be deprived of it in exceptional circumstances. Furthermore, the
presumption in favour of liberty is underlined by the imperative requirement
under Article 5 to ensure that liberty should both be lost for no longer than
is absolutely necessary and be capable of being readily recovered where such
loss is not justified. However, there is a clear burden of proof on those who
have taken away someone’s liberty to establish not only that the power under
which it occurred falls within one of the grounds specified in Article 5 but
also that its exercise was applicable to the particular situation in which it
was used.

1. b) According
to article 6 §§ 1 and 3 (c): “1. In the
determination of his civil rights and obligations or of any criminal charge
against him, everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal established by law. Judgment
shall be pronounced publicly, but the press and public may be excluded from all
or part of the trial in the interests of morals, public order or national
security in a democratic society, where the interests of juveniles or the
protection of the private life of the parties so require, or to the extent
strictly necessary in the opinion of the court in special circumstances where
publicity would prejudice the interests of justice.” And “3. (c) to defend
himself in person or through legal assistance of his own choosing or, if he has
not sufficient means to pay for legal assistance, to be given it free when the interests
of justice so require”. Article 6(1) applies both to cases involving ‘civil
rights and obligations’ and to criminal cases. Through a series of judgments,
the European Court of Human Rights has interpreted civil rights and obligations
as including areas such as family law, employment law and commercial law. The
principles contained in Article 6(1) may also apply to certain cases involving the
relationship between the individual and the state, especially disputes
involving money and property. Moreover, the rights guaranteed in Article
6(3)(c) is an important element of defence rights. It contains three distinct
elements, namely: the right to defend oneself in person, the possibility in
certain circumstances to choose a lawyer, and the right to free legal
assistance where he has insufficient means and where the interests of justice
so require. However, the majority of cases that have come before the Court
concern mostly the opposite situation, that is where an accused or defendant is
required to defend himself in person or is refused free legal assistance for a
substantive part or the whole of the criminal proceedings.

The European Court of Human Rights therefore examines:
(1) whether it is violation of freedom of expression; (2) whether it is
violation of freedom of assembly and association; and finally (3) whether it is
violation of right of appeal in criminal matters.

Adjudication method: Reference to domestic law of Georgia in conjunction with the reference
to international law.

Reference to other constitutional courts: No.

Reference to International Law: Articles 5, 6, 11, 35 and 41 of European Convention of
Human Rights.

Bibliography: Macovei M., A guide to the implementation of Article 5 of the European
Convention on Human Rights, Human rights handbooks, No. 5, 2004, Available at:
http://echr.coe.int/NR/rdonlyres/D7297F8F-88DB-42B0-A831-FB4D1223164A/0/DG2ENHRHAND052004.pdf
[accessed December 2004] ∙ Human Rights Review 2012, Article 6: The right to a
fair trial, Available at: http://www.equalityhumanrights.com/uploaded_files/humanrights/hrr_article_6.pdf
[accessed 21 May 2012] ∙ Interights Manual for Lawyers, Right to a fair trial
under the European Convention on Human Rights (article 6), Available at: www.interights.org [accessed 7 September
2009].

Key words: Right to liberty and security, Right to a fair trial, Freedom of
assembly and association, Freedom of peaceful assembly.

Related social rights: Freedom of expression/ Freedom of assembly and association.

Constitutional provisions: Articles 59 and 60 of the Hungarian Constitution.

Subject:The applicant complained under Article 10 of the
Convention that her conviction for some statements she had published on the
Internet had amounted to a breach of her right to freedom of expression,
especially in view of the fact that she could not prove the truth about the
impugned allegations.

Summary of the Decision:

I. Facts of the case

The applicant, a retired senior police officer, was at
the material time the chairperson of Tettrekész Police Trade Union. Between May
2007 and July 2009 she published a number of writings on the Trade Union’s
website, which was effectively under her editorial control, concerning
outstanding remunerations due to police staff, alleged nepotism and undue
political influence in the force, as well as dubious qualifications of senior
police staff. On 29 April 2010 the Military Bench of the Budapest Regional
Court found her guilty as charged and sentenced her to a fine and demotion. The
court did not sustain the applicant’s defence according to which the
publication of such allegations belonged to the core of a trade union’s
activities. On 8 December 2010 the Military Bench of the Budapest Court of
Appeal upheld the applicant’s conviction under section 357 of the Criminal
Code.

The Court declared unanimously the complaint
concerning Article 10 admissible and the remainder of the application
inadmissible and held by six votes to one that there has been no violation of
Article 10 read in the light of Article 11 of the Convention.

II. The basic considerations of the case

1. a) According
to article 10 of the European Convention on Human Rights: “1. Everyone has the right to freedom of expression. This right shall
include freedom to hold opinions and to receive and impart information and
ideas without interference by public authority and regardless of frontiers.This article shall not prevent States from requiring
the licensing of broadcasting, television or cinema enterprises. 2. The
exercise of these freedoms, since it carries with it duties and
responsibilities, may be subject to such formalities, conditions, restrictions
or penalties as are prescribed by law and are necessary in a democratic
society, in the interests of national security, territorial integrity or public
safety, for the prevention of disorder or crime, for the protection of health
or morals, for the protection of the reputation or rights of others, for
preventing the disclosure of information received in confidence, or for maintaining
the authority and impartiality of the judiciary.” In the context of effective political democracy and respect for human
rights mentioned in the Preamble to the Convention, freedom of expression is
not only important in its own right, but also it plays a central part in the protection
of other rights under the Convention. Without a broad guarantee of the right to
freedom of expression protected by independent and impartial courts, there is
no free country, there is no democracy. This general proposition is undeniable.
However, the right to freedom of expression in Article 10 is not absolute.
Interferences with the right to freedom of expression may be permitted if they
are prescribed by law, pursue a legitimate aim and are necessary in a
democratic society, that is, satisfy a pressing social need. The legitimate
purposes for which freedom of expression can be limited are:

National security, territorial integrity or public safety.

The prevention of disorder or crime.

The protection of health or morals.

The protection of the reputation or rights of others.

The prevention of the disclosure of information received in
confidence.

For maintaining the authority and impartiality of the judiciary.

1. b) Furthermore,
according to article 11 of the European Convention on Human Rights: “1. Everyone has the right to freedom of
peaceful assembly and to freedom of association with others, including the
right to form and to join trade unions for the protection of his interests. 2.
No restrictions shall be placed on the exercise of these rights other than such
as are prescribed by law and are necessary in a democratic society in the
interests of national security or public safety, for the prevention of disorder
or crime, for the protection of health or morals or for the protection of the
rights and freedoms of others. This article shall not prevent the imposition of
lawful restrictions on the exercise of these rights by members of the armed
forces, of the police or of the administration of the State”. Article 11 is
one of the foundations of a democratic society. Article 11 provides that
everyone has the right to freedom of peaceful assembly and freedom of
association with others. The right to freedom of peaceful assembly means the
right to protest in a peaceful way, and includes static protests, parades,
processions, demonstrations and rallies. The right to freedom of association
protects the right to join or form ‘associations’, such as political parties,
as well as the right to form and join a trade union. Article 11 imposes two
different types of obligations on the state: a) a negative obligation, which
means that public authorities must not prevent, hinder or restrict peaceful
assembly except to the extent allowed by Article 11(2), and must not
arbitrarily interfere with the right to freedom of association, b) a positive
obligation, so that in certain circumstances public authorities are under a
duty to take reasonable steps to protect those who want to exercise their right
to peaceful assembly. The state must also take reasonable and appropriate
measures to secure the right to freedom of association under domestic law. Article
11 is intrinsically linked to the right to freedom of expression (Article 10),
as in this case. However, the Court notes that, in some statements published on
the website under her effective editorial control, the applicant brought up
labour issues, such as outstanding remunerations, which concerned servicemen including
trade union members. For the Court, these latter views overstepped the mandate
of a trade union leader, because they are not at all related to the protection
of labour-related interests of trade union members.

The European Court of Human Rights therefore examines whether
the proceedings had not been fair under Articles 6, 13 and 17 of the Convention.
However, there was no appearance that the domestic courts lacked impartiality
or that the proceedings were otherwise unfair or arbitrary.

Adjudication method: Reference to domestic law of Hungary in conjunction with the reference
to international law.

Reference to other constitutional courts: No.

Reference to International Law: Articles 10, 11 and 35 of European Convention of Human
Rights.

Relation with former jurisprudence/Innovative elements: The Court has followed its traditional adjudication
method and it referred to its former jurisprudence, i.e. Ceylan v. Turkey, Chauvy
and Others v. France, Csánics v. Hungary, Demir and Baykara v. Turkey, Engel
and Others v. the Netherlands, García Ruiz v. Spain etc.

Related social rights: Right to respect for private and family life/ Right to an effective remedy.

Constitutional provisions: Articles 14, 21, 23, 35 and 140 of the Constitution of
the Republic of Croatia.

Subject:The failure of the Croatian State to prevent the
persistent harassment of a severely disabled young man was a breach of his
Article 3 ECHR right not to be subjected to torture, inhuman or degrading
treatment or punishment.

Summary of the Decision:

I. Facts of the case

In this case the
victims were Dalibor Đorđević (the first applicant) a man with both learning
and physical disabilities in his mid-30’s who suffered a sustained program of
abuse and harassment at the hands of children attending a school some 70m from
his home and his mother Radmila Đorđević (the second applicant) who was also
his carer. The harassment persisted for a period of at least four years, but
most of the incidents were more insidious concerning the first applicant’s
disability and nationality (both applicants are Serbian). His mother also
suffered considerable disruption to her life in her efforts both to care for
her son and to ensure a safe environment for him. The second applicant
repeatedly complained first to the police, and then to the Ombudswoman for
Persons with Disabilities, social services and the school authorities. The
harassment persisted for at least two more years. In that time the actual pool
of perpetrators changed. The police continued to come out when called and move
on the children causing trouble. But no systematic action was taken to tackle
the harassment despite the fact the authorities were well aware that the
applicants were suffering daily abuse.

In its judgment the Court first held that the violence
and continuous threat of violence that the first applicant had suffered could
in principle meet the minimum level of severity necessary to amount to a
violation of Article 3 – the right to freedom from torture, inhuman and
degrading treatment. And that with regard to the second applicant the
harassment, whilst not threatening her physical integrity, had disrupted her
daily life to the extent necessary to amount to a potential violation of
Article 8 – the right to respect for private and family life. It then
considered whether the applicants had exhausted all domestic remedies and
concluded that in all practical senses they had, since the criminal justice
system offered no protection at all, and the civil measures available to the
applicants did not allow for interim relief which would protect them from
harassment.

II. The basic considerations of the case

1. a) The first issue, which raises,
is prohibition of torture. According to article 3 of the ECHR “No one shall be
subjected to torture or to inhuman or degrading treatment or punishment”.
However, article 3 of the ECHR only exceptionally imposes positive obligations
on the state to protect individuals from inhuman or degrading treatment. It is
well established that the positive obligation can only arise where the state: ‘Knew
or ought to have known at the time of the existence of real and immediate risk
of an identified individual from the criminal acts of a third party…’ [para
139]. In this instance the Croatian authorities had violated Article 3 of the
ECHR. Whilst there had been sporadic attempts to address the abuse these had
not been translated into effective action. As a result Dalibor Đorđević was
indeed the victim of a violation of Article 3.

1. b) Furthermore,
the state’s failure to protect Dalibor had knock-on effects on his mother which
resulted in a violation of her Article 8 rights to respect for her private and
family life, her home and her correspondence. The problem of disablist hate
crime perpetrated by young teenage children against disabled adults is not
unusual and it is certainly not specific to Croatia. What makes this case
interesting is how very ordinary it is. Nothing about the facts make it stand
out as a case which could only occur in Zagreb, or Croatia. The crimes Dalibor
and Radmila Đorđević suffered were particularly hard to police because there
were a great many perpetrators, most of whom were below the age of criminal
responsibility. In addition whilst the acts had a very high frequency with some
exceptions most were not serious offences in themselves. This is no way
mitigates the severity of their suffering. But it helps to explain why the
various agencies involved continued to hope that such a difficult problem might
turn out to belong to somebody else.

The European Court of Human Rights therefore examines whether
the applicants had exhausted all domestic remedies and concluded that in all
practical senses they had, since the criminal justice system offered no
protection at all, and the civil measures available to the applicants did not
allow for interim relief which would protect them from harassment.

Adjudication method: Reference to domestic law of Republic of Croatia in conjunction with
the reference to international law.

Reference to International Law: Convention on the Rights of Persons with Disabilities,
Recommendation Rec(2004)10 of the Committee of Ministers to member States
concerning the protection of the human rights and dignity of persons with
mental disorder, Recommendation Rec(2006)5 of the Committee of Ministers to
member States on the Council of Europe Action Plan to promote the rights and
full participation of people with disabilities in society: improving the
quality of life of people with disabilities in Europe 2006-2015, Resolution
ResAP(2005)1 on safeguarding adults and children with disabilities against
abuse, Resolution 1642 (2009) of the Parliamentary Assembly on access to rights
for people with disabilities and their full and active participation in society.

Key words: Prohibition of torture, Degrading treatment, Inhuman treatment, Positive
obligations, Right to respect for private and family life, Positive obligations,
Respect for family life, Respect for private life, Right to an effective remedy

Social Right to the
irreducibility of the value and to the readjustment of the social security benefit;

Union Freedom and competence to
register union entities;

Right to education –Municipalities;

Right to compensatory reparation
concerning arbitrary dismissal;

Right to the pension by death –
Prior Administrative Petition;

Right to health – Patient with
HIV/AIDS;

Rights to retirement and
stability in employment - principle of the social value of work;

Right to health - financial
availability of the State;

Right to life and to health of
the child and of the teenager - Acquisition and Supply of imported Medicines;

Transfer of funds intended for
education – agreement between Private entity and the State;

Right to education for children -
art. 208, IV, of the Constitution;

Right to obligatory and free
fundamental teaching and omission regarding analphabetism;

Paid leave for pregnant worker - principle
of equality;

Right to health - drug registered
in ANVISA - other persons in identical situation;

Social right to housing, the
owner’s right of a real estate and the non attachability of the family good;

Right to health, right to life
and determination of the payment of medical treatment out of Brazil;

Right to previous notice
proportional to the time worked – writ of injuction;

Right to the teenager´s school
transport – principle of the prohibition of insufficient protection;

Duty of assistencial
contribution to the union and non-members;

Right to the benefit
of assistance with continuous rendering - charge of defining the line of poverty;

Right to the reserve
of a vacancy of applicant - person with disability in public contest;

Right to strike of
public officers – writ of injunction;

Right to minimum wage
capable to guarantee his and his family´s vital necessities – Presidential
Decree;

1)Social
Right to Safety - precarious situation of the Civil Police Station

Country:
Brazil, Supreme Court
(STF)

Year
of the Decision: judged
on 06.04.2010Number of the Decision: Suspension
of Injunctive Relief – Supreme Court , Rel. Min. Gilmar Mendes

Social
Rights Related: Social Right to
Safety

Articles of the Federal Constitution: art.
144, § 4

Abstract of Court: the Public Prosecution service filed a public civil
suit aimed at obtaining measures against the precarious situation of the Civil
Police Station installed in the city of Ceará-Mirim, in which, in spite of the
lack of physical conditions, were kept temporary and condemned prisoners, by
reason of the insufficiency of vacant in public prisons. It was decided in the
realm of the Supreme Court of the State of Rio Grande do Norte: to determine to
the State to make service available for informing the police and judicial
authorities the establishments to which the new prisoners should be sent; and
to determine that must be submitted, within the term of ninety days, the plan
for transference of all the prisoners under custody in the Civil Police Station
of Ceará-Mirim and, in the event of insufficient vacant, to plan the building
of new prison establishments to be implemented gradually in the six following
months. In the Supreme Court: the decision was maintained and suspended to only
the daily penalty imposed to the political agents for the noncompliance with
the decision.

Adjudication Method: “As I have analyzed in doctrinal
studies, the fundamental rights do not contain only a prohibition of
intervention (Eingriffsverbote), but they also express a postulate of protection
(Schutzgebote). Thus, there would be, using an expression of Canaris, not only
a prohibition of insufficient protection (Untermassverbot)(Claus-Wilhelm
Canaris, Grundrechtswirkungen um Verhältnismässigkeitsprinzip in der
richterlichen Anwendung und Fortbildung des Privatsrechts, JuS, 1989, p. 161).
In this objective dimension, also assumes importance the
perspective of the rights to organization and to procedure,(Recht auf Organization und
auf Verfahren),which are those fundamental rights that
depend, in their realization, of measures by the State in order to create and
to form agencies and procedures indispensable to their effectiveness. It seems
logical, therefore, that the effectiveness of this social right to safety does
not prescind of the positive action by the State in the sense of creating
certain factual conditions, always depending on the funding resources available
to the State, and of systems of bodies and procedures intended to this purpose.
Otherwise, would be shielded, by means of a wide space of State
discretionarity, factual situation undeniably loathed by society,
characterizing typical hypothesis of insufficient protection by the State, at a
more general level, and of the Judiciary, at a more specific level”.

Relation with Preterit Case Law and Elements of
Innovation: the case law
invoked works with the subject of the suspension of injunctive relief. The
constitutional nature of the controversy justifies the competence of the
Supreme Court to appreciate the request of counter caution (Rcl-AgR 497). The
President of the Supreme Court is not forbidden from passing minimum judgment
of appreciation concerning juridical issue present in the main claim (SS AgR
846). Public order is conceived as normal execution of the public services, the
regular working of the public works and the due exercise of the administrative
functions by the constituted authorities (SS 4405). See also SL 235, Rel. Min.
Gilmar Mendes, delivered on 08.07.2008, regarding the analogous decision that
had determined the implantation, in twelve months, of a program for the
internment and semi-freedom of teenagers who had committed infractions.

Abstract of Court: “ The right to safety is an
indisponible constitutional

prerogative, guaranteed by means of the implementation
of public policies which impose to the State the obligation to create objective
conditions to make possible the effective access to such service. The Judiciary
can determine the implementation by the State, when in default, of public
policies constitutionally provided, without interference in an issue involving
the discretionary power of the Executive. Precedents”

Adjudication Method: The right to safety is conceived as an indisponible
constitutional prerogative, and the determination of public policy by the
Judiciary is possible. The vote of Min. Ellen Gracie refers to the ADPF 45,
which provided that the right to health has a “political dimension”. The
principle of the separation of powers may not be used to preclude a social
right recognized in the Constitution (art. 6 and 144). The decision is founded
on the omission by the Administration to implement a public policy provided
constitutionally (RE 410.715/SP), that compromises the efficacy and the
integrity of the social and cultural rights (RE 410.715/SP).

Relation with Preterit Case Law and Elements of
Innovation: the vote of Min.
Ellen Gracie refers to the ADPF 45/DF, the RE 271.286-AgR/RS, the AI
597.182-AgR/RS, the AI 553.712/RS, the SS 3205/AM, the AI 562.561/RS, the SL
47-AgR/PE, the RE 410.715/SP and the RE 594.018-AgR/RJ.

Abstract of Court: General Repercussion acknowledged. The issue
concerning the recognizance of the acquired right to the best benefit has
juridical and social relevance. It is most important to know whether, even
under the force of a same law, the insured would have the right to choose,
founded on the acquired right, the most advantageous benefit, considering the
various dates on which the right could have been exercised, since when the
minimum requisites for retirement had been accomplished.

Adjudication Method: There is a discussion on the definition of the law
applicable to the calculus of the benefit of retirement, whether from the time
when it was required, or from the date when it was granted. Construed of art.
102, 1st. paragraph c.c. art. 122 of Law 8.213/91, founded on
constitutional devices to declare the thesis of the right acquired to the best
social security of general repercussion.

Social Rights Related: Social right to the irreducibility of the value and to
the readjustment of the social security benefit

Articles of the Federal Constitution: Art. 194, IV and 201, 4th. §

Abstract of Court: “Art. 41, II, of Law 8.213/1991
and its successive amendments do not violate the provision of art. 194, IV and
201, 2nd. § of the Constitution. Precedents. After the edition of
the laws on costing and benefits of social security, impossible to revise
social security benefits related to the minimum wage. (…)”

Adjudication Method: there was application of preterit case law (RE-AgR
276151/RJ and RE-AgR 453105/MG)

Relation with preterit case law/Elements of
Innovation: impossible to
revise the social security benefits linked to the minimum wage variation
(RE-AgR 276151/RJ). The Supreme Court recognized the material constitutionality
of the infra constitutional legislation that realizes the readjustment of the
social security benefits (RE-AgR 453105/MG).

Abstract of Court: “Professional association has
procedural legitimacy to solicit injunction order intended to filling lacuna of
the legislative discipline allegedly necessary for the exercise of the freedom
to turn into a union (Federal Constitution, art. 8). There is no procedural
interest necessary for the impetration of an injunction order, if the exercise
of the right, of the freedom or of the constitutional prerogative of the
solicitor is not made unfeasible owing to the lack of infra constitutional rule,
given the reception of former ordinary right. Union freedom and unicity and
competence to register union entities (Federal Constitution, art. 8. I and II):
reception of the competence of the Department of Labor, in terms, without
prejudice of the possibility that the law create a differente regime”.

Adjudication Method: The constitutional conception of union freedom does
not exempt the public registration, which is an act linked to the legal
criteria and to the constitutional principle of the territorial unicity for
economic category. The vote of Min. Sepúlveda Pertence questions whether the
constitutional precept that provides on the registration of union entities has
full efficacy and immediate applicability, with the Brazilian doctrine of José
Afonso da Silva, to affirm that there is no reception of a pre-constitutional
rule. The competence of the Labor Department to register the constitution of
the union entities was justified by the function of guaranty of the principle
of the union unicity. That which is prohibited is the establishment by law of a
prior discretionary authorization to create the union, for which was invoked
the doctrine of Xavier de Albuquerque with the purpose to make an “adequating reinterpretation” before the
Federal Constitution of 1988, for the public registration of a union to start
being a linked, not a discretionary act. It was not considered that there was a
procedural interest of the injunction order, because the right had not been
made unfeasible by the lack of an infra constitutional rule, in view of the
fact that the right was considered received by the Federal Constitution, more
specifically, the right contained in art. 558 of the Labor Code (CLT). In the
vote of Min. Marco Aurélio, art. 8, section I of the Federal Constitution does
not depend on a regulatory rule, constituting prohibition to the legislator,
for there is not for this judger the reception of art. 558 of the CLT. The vote
of Min. Celso de Mello refers to the doctrine of Maria Helena Diniz of the “absence of an indispensable rule, so that
another one produces juridical effects” (Norma Constitucional e Seus Efeitos, 1989, p.38) for the concept of
injunction order. There was, in this decision, pondering between the principle
of free union association and the principle of union unicity.

Reference to International Law: Convention 87 of 1948 of the International Labor Organization (Entry
224, Recompilation of Decisions and Principles of the Committee of Union
Freedom, OIT, Geneva, 1985).

Relation with preterit case law/Elements of
Innovation: the votes refer
to the doctrinal and case law divergence of the Superior Court and of the Superior
Labor Tribunal, on which is the competent body to register the unions, whether
the civil registry of the Labor Department.

Key words: union freedom; competence of the Labor Department to register the
constitution of the union entities

6) Right to education - Municipalities

Country: Brazil, Supreme Court (STF)

Year of the Decision: judged on 27.08.2004

Number of the Decision: RE 401880/SP, Rel. Min. Eros Grau

Social Rights Related: the right to education

Articles of the Federal Constitution: 205, 208, I, 211, § 2º

Abstract of Court: “ The Supreme Court of the State
of São Paulo denied granting to the appeal interposed by the Municipality of
São Paulo. The decision is abridged as follows: “Writ of Mandamus. Minor. Right
to fundamental education. Tuition in first degree municipal school near the minor´s
residence. Decision granting the writ. (…) Application of articles 148, V, 208,
I and 209 of the Statute of the Child and of the Teenager (ECA). Fundamental
teaching guaranteed not only by ECA (arts. 53 and 54), but also by the Federal
Constitution itself (arts. 205, 208, I and 211, § 2). A matter not only of convenience, but
also of the right to a vacancy in a school. Function of the Judiciary to
enforce and respect the rules in force, that does not configure interference in
the Executive´s discretionary power. Offense to the right that deserves prompt
and immediate correction by the Judiciary. Decision maintained’. (…) The
precept inscribed in article 211, § 2, of the Constitution – ‘ The
Municipalities shall act with priority in the fundamental and pre-school
teaching’ – is a programmatic rule that finds its concretization by means of
laws intended to implement public policies”.

Adjudication Method: the violation to art. 211, §, Federal Constitution, if
it were, would be indirect and reflex, which did not make feasible the knowing
of the Appeal to the Brazilian Supreme Court, in view of art. 21, § 1 of the
Internal Regiment of the Supreme Court, RISTF, because this decision understood
that the rule of art. 211, § 2 is programmatic, but is concretized by means of
laws, thus the unreasonableness of the Appeal to the Brazilian Supreme Court.

Key Words: Right to education - Municipalities shall act
with priority in the fundamental and pre-school teaching

7) Right to compensatory reparation concerning
arbitrary dismissal

Country: Brazil, Supreme Court (STF)

Year of the Decision: judged on 04.09.1997

Number of the Decision: ADI nr. 1.480-3/97, Rel. Min. Celso de
Mello

Social Rights Related: the right to compensatory reparation concerning
arbitrary dismissal or without a just cause

Articles of the Federal Constitution: art. 7º, I and art. 10, I of ADCT/88

Abstract of Court: “ Direct Action of
Unconstitutionality. Convention nr. 158/OIT. Protection of the
worker against arbitrary dismissal or without a just cause. Allegation of
constitutional illegitimacy of the acts that incorporated this international
convention to the internal positive law of Brazil (Legislative Decree nr.
68/92 and Decree nr. 1.855/96. Possibility of abstract control of
constitutionality of international treaties or conventions in light of the
Constitution of the Republic – alleged transgression to art. 7, I, of the
Constitution of the Republic and to art. 10, I, of ADCT/88. (…) Constitutional
legitimacy of Convention nr. 158 of the ILO, provided that the
construed is observed according to the Supreme Court”.

Adjudication Method: there was “construed according to” the Supreme Court
of Convention nr. 158 of the International Labor Organization (ILO),
to declare it incompatible in view of the prevision of reserve of Complementary
Law by the Constitution and to characterize the referred International
Convention as a programmatic rule. The decision was for the formal and material
unconstitutionality of the right to the reintegration to the employment
provided by the Convention of the ILO in the light of the right to compensatory
reparation of the worker dismissed arbitrarily or without a just cause,
established by the Brazilian Constitution.

Reference to the International Law: Convention nr. 158 of the ILO. The vote of
Rel. Min. Celso de Mello refers to art. 26 of the Inter American Charter of
Social Guaranties of 1948 and arts. 7 and 8 of the International Pact of the
Economic, Social and Cultural Rights, the Vienna Convention on the Treaties,
does is not comparable with Rp. N. 803-DF (declaration of partial
unconstitutionality of Convention nr. 110 of the ILO) to grant the preliminary
order with the purpose to declare the unconstitutionality of the referred
International Convention.

Relation with preterit case law/Elements of
Innovation: The vote of Rel.
Min. Celso de Mello refers the RED 80.004-SE (between international treaties
and Brazilian internal laws there is a relation of normative parity). Refers
the RE 179.193-PE and Abstract 77 of the TST. The divergent vote of Min. Carlos
Velloso, in which he admits the entering of international treaty as
Complementary Law, by art. 5, paragraph 2 of the Federal Constitution, refers
RE 205.815-RS (self-applicability of art. 7, inc. XIV). The vote of Min.
Sepúlveda Pertence refers Abstract 575 of the STF (exemption of State taxes by
the GATT).

Abstract of Court: “Interlocutory Appeal in the
Brazilian Supreme Court. Social Security. Pension by death. Prior
administrative petition. Negative of social security Autarchy as a condition
for access to the Judiciary. Unnecessariness. There is not in the
constitutional text a rule that institutes the necessity of prior negative of
petition for the concession of social security benefit in the administrative
realm as a condition for the request of judicial granting”.

Adjudication Method: application of preterit case law in the sense that
there is no necessity of prior administrative request in order to litigate
social security benefit in the Judiciary.

Key Words: right to the pension by death; necessity of prior negative of petition
in the administrative realm for the social security granting

9) Right to health – Patient with HIV/AIDS

Country: Brazil, Supreme Court (STF)

Year of the Decision: judged on 12.09.2000

Number of the Decision: Interlocutory Appeal in the Appeal to the Brazilian
Supreme Court, RE 271286 AgR/RS, Rel. Min. Celso de Mello

Social Rights Related: the right to health

Articles of the Federal Constitution: arts. 5º, caput,
and 196

Abstract of Court: “ Patient with HIV/AIDS – person
destitute of financial resources – constitutional duty of the public power
(Federal Constitution, arts. 5, caput, and 196) – Precedents (STF) - Interlocutory Appeal not granted. The Right
to health represents constitutional consequence indissociable of the right to
life. The public right subjective to health represents indisponible juridical
prerogative assured to the generality of the persons by the Constitution of the
Republic itself (art. 196). Translates juridical good constitutionally
protected, for whose integrity must zeal, in a responsible manner, the Public
Power, in charge of formulating – and implementing – suitable social and
economic policies aimed at guaranteeing, to the citizens, including the bearers
of the HIV virus, the universal and equal access to the pharmaceutical and
medical-hospital assistance. (…) The programmatic character of the rule inscribed
in art. 196 of the Political Charter – addressed to all the political entities
that compose, at the institutional level, the federative organization of the
Brazilian State – may not be turned into an inconsequent constitutional
promise, under penalty that the Public Power, by defrauding just expectations
deposited by the collectivity, substitute, in an illegitimate manner, the
compliance of its unpostponable duty, by an irresponsible gesture of
governmental infidelity to what the Fundamental Law of the State itself
determines. Free distribution supply of medicines for people in lack of
resources. The judicial recognition of the juridical validity of programs for
the free distribution of medicines for people in lack of resources, including
the bearers of the HIV/AIDS virus, gives effectiveness to fundamental precepts
of the Constitution of the Republic (arts. 5, caput, and 196) and represents,
in the concretion of its range, a reverent and solidary of the appreciation of
the persons´ life and health, especially those who have nothing and who own
nothing, except for the awareness of their own humanity and their essential
dignity. Precedents of the STF”.

Adjudication Method: The right to health is related to the right to life.
The right to health is conceived as a subjective public right, juridical
prerogative undisponible and fundamental right. The vote of Min. Celso de Mello
recognized that the Municipality of Porto Alegre and the State of Rio Grande do
Sul are jointly in charge of the obligation to supply for free the drugs
necessary for the treatment of AIDS, in the cases of patients destitute of
financial resources and bearers of the HIV virus. Justifies with the dismissal
of public bid for cases of emergency and public calamity to refute the argument
of necessary budgetary scheduling. Conceives the right to health as an
inalienable subjective public right. As he says: “the sense of the fundamentality of the right to health (…) imposes on
the Public Power a duty of positive rendering”.

Relation with preterit case law/Elements of
innovation: : Ag 232.469/RS,
Ag 236.644/RS, Ag 238.328/RS, Pet 1.246/SC, RE 273.042/RS, RE 236.200/RS, RE
247.900/RS, RE 264.269/RS, RE 267.612/RS, RE 232.335/RS and RE 273.843/RS. It
may be noted as an element of innovation to AI 238328-0 AgR/RS, 1999, Rel. Min.
Marco Aurélio – also based on the “material
impossibility” (financial impossibility) for acquiring medicine and on the
right to health provided in art. 196 as a decision criterion for the obligation
to supply medicine to a patient bearer of the HIV virus – the funding on the
right to life, as per RE 271286 AgR/RS.

Abstract
of Court: “
Direct Action of Unconstitutionality. Article 3 of Provisional Remedy nr.1.596-14-97, converted into Law nr.9.528/97,
that added to article 453 of the Consolidation of the Labor Laws a second
paragraph to extinguish the employment relation upon the concession of
spontaneous retirement. Legal basis of the action. The conversion of the
provisional remedy into law hinders the jurisdictional debate on the “relevance
and urgency” of this species of normative act. The social values of work
constitute: a) fundament of the Federative Republic of Brazil (incise IV of
article 1 of the Federal Constitution); foundation of the Economical Order,
whose purpose is to assure to all a dignified existence, according to the dictates
of social justice, and, by one of its principles, the quest of full employment
(article 170, caput and incise VIII); c) basis of the whole Social Order
(article 193). This framework of principles, densified in rules such as incise
I of article 7 of the Constitution and those of article 10 of the ADCT/88,
unveils a constitutional command that pervades every employment relation, in
the sense of its desired continuity. (…)”

Adjudication Method: The principle of the social value of work was applied
for the declaration of unconstitutionality of § e of article 453 of the
Consolidation of the Labor Laws.

Key Words:Rights
to retirement and stability in employment - principle of the social value of
work

11) Right to health - financial availability of the
State

Country: Brazil, Supreme Court (STF)

Year of the Decision: judged on 29.04.2004

Number of the Decision: Allegation of Noncompliance of Fundamental Precept,
ADPF 45 MC/DF, Rel. Min. Celso de Mello

Social Rights Related: the right to health

Articles of the Federal Constitution: art, 77 of the Acts of the Transitory Constitutional
Provisions (ADCT)

Abstract of Court: “ Allegation of Noncompliance
with Fundamental Precept. The issue of the constitutional legitimacy of the
control and the intervention of the Judiciary in the subject of implementation
of public policies, when configured hypothesis of governmental abusiveness. (…)
Considerations about the clause of the ‘reserve of the possible’. Necessity of
preservation in favor of the individuals, of the integrity and the
intangibility of the nucleus of consubstantiator of the ‘existential minimum’.
Instrumental feasibility of the Allegation of Noncompliance of Fundamental
Precept in the process of concretization of the positive freedoms
(constitutional rights of second generation). (…) The disrespect to the
Constitution may occur by means of an action of the State, as well as by means
of governmental inertia (…)”

Adjudication Method: Allegation judged impaired by supervenient loss of its
object. The Judiciary may intervene in the subject of implementation of public
policies, when configured “governmental
abusiveness”. The economic, social and cultural rights are characterized by
the graduality of their concretization process and they are subordinated to the
budgetary possibilities of the State. The clause of the “reserve of the possible” is translated into the binomium “reasonability of the pretension + financial
availability of the State”. There was the application of the doctrine of
Stephen Holmes and Cass R. Sunstein. As construed by the Supreme Court, the
economic, social and cultural rights are of second generation and of “always onerous implantation”. The “undue manipulation” of the “financial and/or political-administrative
activity” by the Public Power constitutes illegitimate act when it renders
unfeasible the minimum material conditions of existence and when it affects
this “intangible nucleus” by means of
an unjustified denial, in the cases of normative omission and rendering
omission.

Relation with preterit case law and elements of
innovation: (RTJ
164/158-161, RTJ 185/794-796 and RTJ 175/1212-1213). On the inertia of the Public
Power and unconstitutional behavior see also: Adi 1.458-MC/DF. On the issue of
the reserve of the possible in the case law of the Supreme Court, WANG, D.W.L.
may be consulted. Lack of resources,
costs of the rights and reserve of the possible in the case law of the Supreme
Court. Available in:

Abstract of Court: “ Writ of Mandamus. Adequacy.
Incise LXIX of article 5 of the Federal Constitution. (…) Acquisition and
Supply of Medicines. Rare illness. The State is in charge of providing means in
order to obtain the health, especially when involved the child and the
teenager. The Sistema Único de Saúde – Single Health System makes the
responsibility linear encompassing the Union, the States, the Federal District
and the Municipalities”. The
State of Rio Grande do Sul was obligated to supply drugs produced in
Switzerland and in the United States.

Adjudication Method: net and certain right to medical care. Founds also the
decision on the joint responsibility of the federative entities. According to
vote of Min. Marco Aurélio: “budgetary
problems may not hinder the implement of that which was provided
constitutionally”.

Key Words: Right to life and to health of the child and of the
teenager - Acquisition and Supply of imported Medicines

13) Transfer of funds intended for education –
agreement between Private entity and the State

Country: Brazil, Supreme Court (STF)

Year of the Decision: judged on 29.06.1999

Number of the Decision: Interlocutory Appeal in Appeal to the Brazilian
Supreme Court, RE 241757 AgR/MA, Rel. Min. Maurício Corrêa

Abstract of Court: “Interlocutory Appeal in Appeal
to the Brazilian Supreme Court. Constitutional. Administrative. Private entity
for social assistance. Rendering of specialized teaching. Transfer of funds
intended for education. Inexistence of agreement. Impossibility. Fundamental
teaching for bearers of deficiency. Non offering by the Public Power.
Consequence. Payment of the expenses made by the petitioner. Unacceptable
pretension. Abridgment 269/Supreme Court. The public funds, by constitutional
provision, shall be passed on to public schools, may be addressed to the community,
confessional or charitable, defined in law, that prove a non-profitable purpose
and apply their financial excedents in education and also, who assure the
destination of their patrimony to other institutions of identical nature, or to
the public power, in the event of closing their activities. 2. Private entity
declared of public utility by the Federal Government and recognized as of
social assistance without profitable purposes. Transfer of funds intended to
education. Necessity to observe the conditions imposed by the conditions impose
by the Constitution and to establish an agreement with the public power. 2.1.
Transfer of financial resources by judicial decision. Impossibility for the
Judiciary to interfere in the freedom of the public entity for entering into
administrative contracts. Net and certain right. Inexistence. 3. Obligatory
teaching for bearers of deficiency. Non offering by the public power.
Consequence: imputation of responsibility to the competent authority. Calculation.
Necessity to produce proofs. Writ of Mandamus. Inadequacy of elected way. 4.
Commitment of the public power to the payment of debt assumed by private entity
for performing social work, of competence of the State. Unacceptable
pretension. The writ of mandamus is not a surrogate for a collection suit.
(…)”.

Adjudication Method: Inadequacy of the procedural way elected for
collection suit of the State and impossibility of the Judiciary to invade orbit
of administrative discretionary in the formulation of administrative agreements
and contracts to transfer financial funds.

Abstract
of Court: “ Child up to six years
old. Care in Nursery and in Pre-School. Children education. Right assured by
the constitutional text itself (Federal Constitution, art. 208, IV). Global
encompassing of the constitutional right to education. Juridical duty whose
exception is imposed upon the public power, mainly to the municipality (Federal
Constitution, art. 211, § 2. Appeal to the Brazilian Supreme Court known and
granted. Children education represents an indisponible constitutional
prerogative which, deferred to children, assures them, to the effect of their
integral development, and as the first stage of the basic education process,
the care in nursery and the access to pre-school (Federal Constitution, art.
208, IV). This juridical prerogative, consequently, imposes to the State, by
effect of the high social signification of education for the children, the constitutional
obligation to create objective conditions that make it possible, in a concrete
manner, in favor of the ‘children from zero to six years old’ (Federal
Constitution, art. 208, IV), the effective access and care in nurseries and
pre-school units, under penalty of configuring inacceptable governmental
omission, apt to frustrate, unfairly, by inertia, the integral compliance, by
the Public Power, of a rendering by the State which was imposed by the text of
the Federal Constitution itself. (…) The Municipalities – who will act, by
priority, in fundamental teaching and in children education (Federal
Constitution, art. 211, § 2 – may not dismiss themselves from the
constitutional mandate, juridically linking, which was granted to them by art.
208, IV, of the Fundamental Law of the Republic, and which represents a factor
of limitation of the discretionary political-administrative nature of the
municipal entities, whose options, concerning children care in nursery (Federal
Constitution, art. 208, IV), may not be exercised so as to jeopardize, with
support in judgment of simple convenience or mere opportunity, the efficacy of
this basic right of social character (…)”.

Adjudication Method: The municipal public administrator is linked to art.
208, IV, of the Constitution, which represents a factor of limitation of the
political-administrative discretionary nature of the municipal entities. In
this decision, childrens´ education constitutes an “indispensable constitutional prerogative”, “one of the most expressive social rights”, right of second
generation and fundamental right of the child. There is reference to the ADPF
45/DF and to the doctrine of the “reserve
of the possible”, affirming that there is no judgment of opportunity and
convenience, under penalty of configuring unconstitutional administrative
omission.

Abstract
of Court: “ Direct Action of
Unconstitutionality by omission regarding the provisions of arts. 6, 23, inc. V, 208, inc. I and
214, inc. I of the Constitution of the Republic. Alleged inertia
attributed to the President of the Republic to eradicate analphabetism in the
country and to implement obligatory and free fundamental teaching for all the
Brazilians. 1. Data of the census of the Brazilian Institute of Geography and
Statistics show a reduction of the rate of analphabet population, complemented by
the increase in schooling by the young and the adults. 2. Absence of omission
by the Chief of the federal Executive Power by reason of the high number of
governmental programs for the education area. 3. The edition of Law nr.
9.394/96 (Law of Guidelines and Bases of National Education) and of Law nr.
10.172/2001 (Approves the National Education Plan) demonstrates the action of
the Public Power for complying with the Constitution. 4. The direct action of
unconstitutionality by omission without legal basis).

Adjudication Method: verification of the existence of federal programs and
laws that concretize the Constitution, using indexes of the Brazilian Institute
of Geography and Statistics and demonstrate that there has been a decrease of
analphabetism in Brazil. In the debates in plenary, it was reiterated that
there is no budgetary contingence (retention of public funds) by the Executive
Power, and verified the observance of the minimum percentages constitutionally
provided for the budget of education. The basic argument of the Min. Relater
Carmen Lúcia was that there was no inertia of the Public Power.

Abstract
of Court: “(…) the Direct Action of
Unconstitutionality is judged with legal basis, partly, to give to art. 14 of Constitutional
Amendment nr. 20, of 15.12.1998, interpretation according to the
Constitution, excluding its application to the salary of the paid leave for
pregnant worker referred to by art. 7, incise XVIII, of the Federal
Constitution (…)”.

Adjudication Method: the Supreme
Court conferred “interpretation agreed without reduction of text” to art. 14 of
Constitutional Amendment nr.
20 of 15.12.1998, which attributed to the employer the payment of the
social security benefit of the worker that earned more than 1.200 R$, in order
not to apply to the paid leave of the pregnant worker for 120 days, without
loss of the job and of the salary, art. 7, XVIII for not occurring “historic retrocession”, “ignore the great feminine conquests in the
Brazilian society”, according to the vote of Min. Rel. Sydney Sanches, and
in order not to exist discrimination by sex, according to the prohibition of
art. 7, XXX, Federal Constitution, in interpretation combined with the
principle of equality, art. 5, inc. I, Federal Constitution. Direct Action of
Unconstitutionality is admitted against Constitutional Amendment, as decided in
the ADI 939, when alleged offense to fundamental principles and to individual
rights and guarantees (art. 60, § 4, Federal Constitution).

Relation with preterit case law and elements of
innovation:ADI
939 was invoked to fundament the legal basis of the direct action of
unconstitutionality in view of Constitutional Amendment. Can be reported RE
166.772-9 and ADI 1102-2 for the discussion on the juridical nature of the
pregnant worker´s paid leave, of labor or social security nature. Were related
ADI/MC 432, ADI 337, ADI 381, ADI 710 and ADI/MC 1653 to fundament the
understanding that efficacy norms in the realm of the Administration, norms of
internal efficacy, are subject to the control of legality, not to the
concentrated control of constitutionality.

Abstract of Court: “It is a request of suspension of
the writ, formulated by the Municipality of Fortaleza, in the light of the
preliminary decision delivered by chief judge Celso Albuquerque Macêdo of the
Supreme Court of the State of Ceará, relater of the Writ of Mandamus nr.
2008.0040.0417-1/0, who determined that the State of Ceará and the Municipality
of Fortaleza supply the drugs listed in the initial petition (…) From this
perspective, it may be necessary to redimension the issue of the
judicialization of the social rights in Brazil. This is because in most cases,
the judicial intervention does not occur in view of an absolute (legislative)
omission in the matter of public policies intended to protect the right to
health, but because of a necessary judicial determination for the compliance
with already established policies. Therefore, it is not about the problem of
judicial interference in realms of free appreciation or widely discretionary of
other powers on the formulation of public policies (…)”.

Adjudication Method: The right to health is considered as a fundamental
social right. The assured public subjective right is construed by means of
social and economic policies, there is no “absolute
right to every and any procedure necessary for the protection, promotion and
recuperation of health”. The judicial interventions do not occur in view of
absolute legislative omission in public policies addressed to the protection of
the right to health, but by virtue of the necessary judicial determination for
complying with established policies. There was no damage proved to the
municipal treasuries for the suspension of the granted suspension. The issue
under analysis was an order of medicines registered at ANVISA, but not supplied
by the SUS. If the suit of rendering of health is not encompassed by the SUS
policies, it must be differentiated whether the non-rendering results from
legislative omission, administrative omission or administrative refusal. For
these cases, the method for taking the decision is to weigh principles for each
concrete case, with the judge evaluating between the criteria of commutative
and distributive justice, so that the SUS has conditions for paying the costs
of the health service of the person who sues and of others in identical
situation.

Abstract of Court: “Appeal to the Brazilian Supreme
Court. Family good. Attachment. Joint owned property expenses. 1. The joint
owned property relation is, typically, a
relation of scope communion. The payment of the joint owned property
contribution [obligation propter rem] is essential for the conservation of the
property, that is to say, the guarantee of the individual and familiar
subsistence to the dignity of the human person.2.There
is no reason for, in this case, to think of non attachment. 3. Appeal to the
Brazilian Supreme Court with granting denied”.

Adjudication Method: the vote of Min. Eros Grau is founded on the fact that
the payment of the joint owned property is “essential
for the conservation of the property” and “for guaranteeing individual and familiar subsistence”, with
reference to the doctrine of Von Ihering, considering that the joint property
contribution consists in a relation of scope communion.

Relation with preterit case law and elements of
innovation:Regarding
the RE 407.688/AC, Rel. Min. Cezar Peluso, judged on 08.02.2006, the same
understanding was maintained. In this Appeal to the Brazilian Supreme Court was
also admitted the attachment of a family good, deciding that there was no
offense to the right to housing. The vote of Min. Peluso argued that the social
right to housing must not be confused with right to be the owner of a real
estate, with invocation of art. 65, 2 of the Constitution of Portugal. The vote
of Min. Eros Grau brought the decision by the German Constitutional Court on
January 29th. 1969. The vote of Min. Joaquim Barbosa referred the RE
201.819, with the affirmation that the fundamental rights are not absolute. The
decisions of Min. Carlos Britto invoked art. 7, IV, art. 23, IX, art. 183 and
art. 226 of the Federal Constitution. The vote of Min. Sepúlveda Pertence
reinforces the vote of Min. Cezar Peluso based on the doctrine of the
horizontal efficacy of the fundamental rights, for to make location feasible –
which implies the guarantee by means of a guarantor – consists also in modality
of concretization of the right to housing. The debates were on the right to
housing of the owner against the right to housing of the lessee. The vote of
Min. Celso de Mello referred art. 25 of the Universal Declaration of the Rights
of the Human Person and art. 11 of the International Pact of the Economic,
Social and Cultural Rights. That what is verified as an innovation element was
the change of understanding of the Supreme Court since RE 407.688, for in the
decisions RE 352.940 and RE 449.657, in the case of attachment of residential
real estate of guarantor in location contract, the non attachability of the
family good had been assured.

Reference to other Constitutional Courts: German Constitutional Court, decision on January 29th. 1969.

Reference to International Law: art. 25 of the Universal Declaration of the Rights of the Human Person
and art. 11 of the International Pact of the Economic, Social and Cultural
Rights

Key words: social right to housing; owner’s right of a real estate; attachment of
residential real estate of guarantor in location contract

19) Right to health, Right to life and determination
of the payment of medical treatment out of Brazil

Country: Brazil, Supreme Court (STF)

Year of the Decision: judged on 24.09.2004

Number of the Decision: Appeal to the Brazilian Supreme Court RE 411.557, Rel.
Min. Cezar Peluzo

Related Social Rights: the right to health

Articles of the Federal Constitution: art. 196

Abstract of Court: “Appeal to the Brazilian Supreme
Court against sentence that condemned the Health Department to pay medical
treatment of patients bearers of progressive ocular illness, to be done abroad.
(…)”.

Adjudication Method: there was application of preterit case law, in which
the right to health and the right to life are indissociated, case of the
obligation to supply drugs to the person bearer of HIV and lacking financial
resources – and application of digest owing to the impossibility to reexamine
facts and proofs in extraordinary appeal. The peculiarity of the case consisted
in being a case in which there was determination of the payment of medical
treatment out of Brazil.

Key words: right to health; right to life and determination of the payment of
medical treatment out of Brazil

20) Right to previous notice proportional to the time
worked – writ of injuction

Country: Brazil, Supreme Court (STF)

Year of the Decision: decision of suspension of judgment on 22.06.2011

Number of the Decision: writ of injunction, MI 943, Rel. Min. Gilmar Mendes

Related Social Rights: the right to previous notice proportional to the time
worked

Articles of the Federal Constitution: art. 7, inc. XXI

Informative Summary nr. 632 of the Supreme
Court:

“The Plenary started joint set of writs of injunction
in which is alleged legislative omission of the Presidents of the Republic and
of the National Congress, in view of the absence of regulation of art. 7, XXI,
of the Federal Constitution, concerning the previous notice proportional to the
time worked (‘Art. 7 Are rights of the
urban and rural workers, beside others aimed at improving their social
condition:… XXI – previous notice proportional to the time worked, of 30 days
minimum, in the terms of the law (…)”.

Adjudication Method: the decisions in plenary are based on the case law of
writ of injunction of the Supreme Court, with consensus on the necessity of
decision for the concrete case and on the hetero-integration method. The
judgment was suspended.

Reference to International Law: recommendation of the International Labor Organization
– ILO on the extinction of the labor relation

Relation with preterit case law/Elements of
Innovation: the writ of
injunction in the Supreme Court passed from the simple communication of legislative
culpable delay, as in the MI nr. 107, to the normative and
concretizing solution by the Judiciary.

Abstract of Court: “The public civil action pleads
condemnation of the State of Rio Grande do Sul to supply school transport to
the intermediary instruction students, minor than eighteen years old,
especially in the night period, who reside at a distance of more than 3km from
public schools, in the municipality of Lajeado (…)”.

Adjudication Method: applied the principle of the prohibition of
insufficient protection, considering there is command linked to the budgetary
preparation, put as priority guarantee of the teenager in the formulation and
in the implementation of public policies, with determination of blocked public
funds to assure the right to the teenager´s school transport, founded on the
Federal Constitution, on the Constitution of the State of Rio Grande do Sul, on
the Law of Guidelines and Bases of National Education and on the Statute of the
Child and the Teenager. The decision is founded on the objective dimension of
the fundamental right to education and to the protection of the child and of
the adolescent.

Reference to International Law: art. 13 of the International Pact on Economic, Social
and Cultural Rights (enacted by Decree nr. 591, of 06.07.1992) and
the World Declaration on Education for Everybody, signed in Thailand in March
1990.

Key words: right to the teenager´s school transport – principle of the
prohibition of insufficient protection – public civil action

22) Duty of assistencial contribution to the union and
non-members

Country: Brasil, STF (Supreme Court )

Year of the decision: judged on 07/11/2000

Number of the Decision RE 189.960-3, Rel. Min. Marco Aurélio

Related Social Rights: the duty of assistencial contribution to the union

Articles of the Federal Constitution: art. 8, III and IV

Abstract of Court: “is legitimate the collection of
assistencial contribution imposed to the employees indistinctly in favor of the
union, provided in collective labor convention, the non-members of the union
are compelled to satisfy the mentioned contribution”

Adjudication Method: there was application of art. 513, item “e” and of the
Consolidation of the Labor Laws and distinction of the contribution provided in
art. 8, inc. IV, Federal Constitution.

Abstract of Court: “About claim, with request of
restraining order, filed by the Instituto Nacional do Seguro Social – INSS
National Institute of Social Insurance against decision, delivered by the
Federal Court of the Federal Special Court of Caxias do Sul/RS, that determined
the granting of the benefit of assistance in favor of Odete Stein, in the terms
of Law 8.742/93. The federal autarchy who filed the claim affirms that the
granting of the benefit offended the authority of the judgment delivered by the
Supreme Court in ADI 1.232/DF, Rel. by chief judge Min. Nelson Jobim(…)”.

Adjudication Method: the constitutionality of art. 20, § 3 of Law 8.742/93, as per judgment of the ADI 1232, for the general
limits for the payment of the benefit by the INSS does not exempt the Judiciary
from analyzing the concrete cases to give efficacy to art. 203, V. It was
construed based on Complementary Law 111/2001, which put the Executive Power in
charge of defining the line of poverty, on Law 9.533/97 and on Law 10.689/2003,
modifiers of the criterion for the objective verification of miserability.

Key words: right to the benefit of assistance with continuous rendering - charge of defining the line of poverty

24) Right to the reserve of a vacancy of applicant -
person with disability in public contest

Country: Brazil, Supreme Court (STF)

Year of the Decision: judged on 13.11.2007

Number of the Decision: Appeal to the Brazilian Supreme Court in Writ of
Mandamus, RMS 26.071/DF, Rel. Min. Carlos Britto

Related Social Rights: the right to the reserve of a vacancy of applicant
with deficiency in public contest

Articles of the Federal Constitution: art. 1, IV and 37, VIII

Abstract of Court: Reserve vacancy for applicant with monocular vision –
deficiency that prevents the comparison between both eyes to know which of them
is “better”, in public contest.

Adjudication Method: refers to the vote to the fraternal society provided
in the preamble of the Federal Constitution, the social value of work provided
in art. 1, inc. IV, CF and art. 5, § 2 of
Law 8.112/90.

Abstract of Court: “The access of class entities to
the way of the collective writ of injunction is procedurally admissible,
provided that legally constituted and working since one year, al least. 2. The
Constitution of Brazil recognizes expressly that civil public officers may
exercise the right to strike – article 37, incise VII. Law nr.
7.783/89 provides on the exercise of the right to strike of workers in general,
affirmed by article 9 of the Constitution of Brazil. Normative act at first
inapplicable to civil public officers. 3. The precept indicated by art. 37,
incise VII, of CB/88, requires the edition of normative act to integrate its
efficacy. Claims, for purposes of full incidence of the precept, legislative
action to concretize the command positivated in the text of the Constitution.
(…). Writ of injunction judged with
legal basis, to remove the obstacle resulting from the legislative omission
and, as also, make feasible the exercise of the right consecrated in art. 37,
VII, of the Constitution of Brazil”.

Adjudication Method: there was formulation to supply the lack of regulating
rule in the case of the right to strike of public officers. Decided by the
self-applicability of the right to strike, considering it as a “fundamental right of instrumental
character”. Granted efficacy to art. 37, VII, Federal Constitution.

Relation with preterit case law/Elements of
Innovation: the decision
conferred effects erga omnes and ultra partes, breaking the former
understanding of the Supreme Court related to the Writ of injunction – mi
485/MT and 585/TO (declaration of legislative culpable delay for the right of
the public officer to strike), MI 283/DF (declaration of legislative culpable
delay with stipulation of term for the National Congress), MI 284/DF, 562/DF
and 543/DF (admission of normative solutions), making possible the concretion
of the constitutional right with efficacy to art. 37, VII. See also: MI 670/ES,
Rel. Min. Maurício Corrêa e MI 708/DF, Rel. Min. Gilmar Mendes, julgados em
25/10/2007.

Reference to Foreign Constitution: art. 18, nr.1 of the Portuguese
Constitution of 1976.

Key words: right to strike of public officers; self-executing of the right to
strike; writ of injuction

29) Right to minimum wage capable to guarantee his and
his family´s vital necessities – Presidential Decree

Country: Brazil, Supreme Court (STF)

Year of the Decision: judged on 03.11.2011

Number of the Decision: A di 4568, Rel. Min. Cármen Lúcia

Related Social Rights: the right to minimum wage capable to guarantee his and
his family´s vital necessities

Articles of the Federal Constitution: art. 7, inc. IV

Abstract of Court: “(…) 1. The constitutional
requirement of a formal law to set the value of the minimum wage is satisfied
by Law nr. 12.382/2011. 2. The use of presidential decree, defined
by Law nr.12.382/2011 as an instrument of annunciation and
disclosure of the nominal value of the minimum wage from 2012 to 2015 does not
disobey the constitutional command put in inc. IV of art. 7 of the Constitution
of Brazil. Law nr. 12.382/2011 defined the value of the minimum wage
and its policy of affirmation of new nominal values for the indicated period
(art. 1 and 2). The President of the Republic, exclusively, is in charge of
applying the indexes legally defined to readjust and increase, and to disclose
them by means of decree, so there is no innovation of the juridical order, nor
new stipulation of value. 3. Action judged without legal basis”.

Adjudication Method: it was understood that the Presidential Decree does
not offend the Federal Constitution.

Relation with preterit case law/Elements of Innovation:Adi 1439-MC/DF, Adi
1442/DF, Adi 1458-MC/DF. The abstract of law of Adi 1439-MC/DF, Rel. Min. Celso
de Mello, judged on 22/05/1996, deserves to be reproduced, for it had as
adjudication element the fact that the Direct Action of Unconstitutionality did
not substitute the Direct Action of Unconstitutionality by omission: “(…). The constitutional clause inscribed in
art. 7, IV of the Political Charter – for beyond the proclamation of the social
guarantee of the minimum wage – consubstantiates true imposition to produce law
which, addressed to the Public Power, has the purpose to link it to the
effectiveness of a positive rendering intended to (a) satisfy the essential
necessities of the worker and of his family and (b) preserve, by means of
periodical readjustments, the intrinsic value of this basic remuneration,
conserving its acquisitive power. (…) The insufficience of the value that
corresponds to the minimum wage, defined in importance that proves incapable to
satisfy the basic vital necessities of the worker and the members of his
family, configures a clear noncompliance, even if partial, with the
Constitution of the Republic, because the legislator, in such hypothesis,
instead of acting as the concretizer subject of the constitutional postulate that
guarantees to the worker class a general remuneration prevailing wage (Federal
Constitution, art. 7, IV), will be realizing, in an imperfect manner, the
social program assumed by the State in the juridical order. (…). Does not
correspond to the Supreme Court, however, in the light of the limits set by the
Political Chart in unconstitutionality by omission matter (Federal
Constitution, art. 103, § 2), the prerogative to issue normative provisions to
supply for the inactivity of the legislative body in default. (…) The case law
of the Supreme Court, founded on the multiple distinctions that are registered
between the abstract control by action and the concentrated fiscalization by
omission, was confirmed in the sense of not considering admissible the possibility
of conversion of the direct action of unconstitutionality, by positive
violation of the Constitution, in action of unconstitutionality by omission,
resulting from the negative violation of the constitutional text”.

Key words: right to minimum wage capable to guarantee his and his family´s vital necessities – Presidential Decree

IACL Project –Social Rights, Library of Social Rights

Country/Court:United Kingdom/ Supreme Court.

Year of Judgment/Nr of Decision: 2012/ UKSC 38.

Related social rights: Right of asylum/ Right to sexual orientation.

Constitutional provisions: No.

Subject:The implementation of freedom of thought and freedom
of expression in order to obtain asylum.

Summary of the Decision:

I. Facts of the case

Is it an answer
to a refugee claim by an individual who has no political views and who
therefore does not support the persecutory regime in his home country to say
that the individual would lie and feign loyalty to that regime in order to
avoid the persecution to which he would otherwise be subjected? This is the
question which arises in these appeals, which form a sequel to this court’s
decision in HJ (Iran) v Secretary of
State for the Home Department in which it was held that a gay man was
entitled to live freely and openly in accordance with his sexual identity and
it was no answer to the claim for asylum that he would conceal his sexual
identity in order to avoid the persecution that would follow if he did not do
so (“the HJ (Iran) principle”). The
first appeal concerns RT, SM and AM. The Court of Appeal allowed the appeals of
RT, SM and AM on the basis that if individuals are forced to lie about their
absence of political beliefs, solely in order to avoid persecution, that is
covered by the HJ (Iran) principle and does not defeat their claims for asylum.
The second appeal concerns KM. His claim was refused, while his son had been
granted asylum in the UK.
In the Court of Appeal, although the Secretary of State accepted that the
appeal should be allowed because it was arguable that adequate consideration
had not been given to the assessment of risk, there was an issue between the
parties as to whether the case should be allowed outright or sent back to the
Tribunal. The Court of Appeal allowed the appeal and sent the case back for
further decision.

The Supreme Court unanimously dismisses the Home
Secretary’s appeals in the cases of RT, SM and AM and allows KM’s appeal. The
HJ (Iran)
principle applies to applicants who claim asylum on the grounds of a
well-founded fear of persecution for reasons of lack of political belief. Lord
Dyson gives the leading judgment with which Lord Hope, Lady Hale, Lord Kerr,
Lord Clarke, Lord Wilson and Lord Reed agree. Lord Kerr also gives a short
concurring judgment.

II. The basic considerations of the case

1. a) Right of asylum is an ancient juridical notion, under which a person
persecuted for political opinions or religious beliefs in his or her own
country may be protected by another sovereign authority, a foreign country, or
church sanctuaries (as in medieval times). To be recognised as a refugee,
someone must have left his country and be unable to go back because he has a
well-founded fear of persecution because of: race; religion; nationality; political
opinion; or membership of a particular social group. If someone does not
qualify for recognition as a refugee but there are humanitarian or other
reasons, he should be allowed to stay in the UK with temporary permission. In
the United Kingdom,
the Asylum and Immigration Tribunal (AIT) was a tribunal constituted with
jurisdiction to hear appeals from many immigration and asylum decisions. It was
created on 4 April 2005, replacing the former Immigration Appellate Authority
(IAA), and fell under the administration of the Tribunals Service. On 15
February 2010, the Tribunal was abolished and its functions transferred to the
new Asylum and Immigration Chamber of the First-tier Tribunal created by the
Tribunals, Courts and Enforcement Act 2007. The Special Immigration Appeals
Commission (SIAC) has been set up to hear appeals against removal of potential
deportees in high security cases. The information given to appellants and their
representatives is limited as compared to other removal hearings.

1. b) The
guarantee of freedom of thought, conscience and religion under article 9 of the
European Convention on Human Rights protects the indifferent or unconcerned,
and extends to the right not to hold thoughts or beliefs and not to give
expression to them. In this context, sexual orientation is a relatively recent
notion in human rights law and practice and one of the controversial ones in
politics. Prejudices, negative stereotypes and discrimination are deeply
imbedded in our value system and patterns of behaviour. The main principles
guiding the rights approach on sexual orientation relate to equality and
non-discrimination. Moreover, several European Union laws offer protection from
discrimination based on sexual orientation and additional requirements refer to
the human rights situation in accession countries, e.g. Article 13 of the EC
Treaty, the Framework Directive on equal treatment in employment and the article
21 (1) of the EU Charter of Fundamental Rights. Finally, the European
Parliament (EP) passed several (non binding) resolutions on human rights and
sexual orientation, the first, adopted in 1984, calling for an end to work
related discrimination on the basis of sexual orientation.

The Supreme Court therefore examines: (1) whether the
HJ (Iran) principle can apply to an individual who has no political beliefs and
who is obliged to pretend to support a political regime in order to avoid the
persecution that he would suffer if his political neutrality were disclosed; and
finally (2) whether, in the light of the country guidance given in RN, there is
a real risk that such a person would face persecution on the grounds that he would
be perceived to be a supporter of MDC.

Adjudication method: Reference to the views of all Lords who heard the case in conjunction
with the reference to former jurisprudence.

Reference to other constitutional courts: No.

Reference to International Law: No.

Relation with former jurisprudence/Innovative elements: The Court has followed its traditional adjudication
method. Furthermore, it refers to former jurisprudence of other Courts, e.g.
the decision of the Asylum and Immigration Tribunal (“AIT”) in RN (Returnees)
Zimbabwe CG [2008] UKAIT 00083, the decision of the Upper Tribunal in EM and Others (Returnees)
Zimbabwe CG [2011] UKUT 98 (IAC), the decision of the European Court of Human
Rights (Kokkinakis v Greece (1993) 17 EHRR 397), Buscarini and others v San
Marino (1999) 30 EHRR 208.

Subject:Reference for a preliminary ruling under Article 267
TFEU from the Verwaltungsgericht Giessen (Germany), made by decision of 11
August 2011, received at the Court on 1 September 2011 in order to interpret
the first indent of the first paragraph of Article 7 of Decision No 1/80 of the
Association Council of 19 September 1980 on the development of the Association
(‘Decision No 1/80’).

Summary of the Decision:

I. Facts of the case

The first
paragraph of article 7 of Decision No 1/80 provides that the members of the
family of a Turkish worker duly registered as belonging to the labour force of
a Member State, who have been authorised to join him shall be entitled –
subject to the priority to be given to workers of Member States of the
Community – to respond to any offer of employment after they have been legally
resident for at least three years in that Member State. In this legal context the
Verwaltungsgericht Giessen decided to stay the proceedings and to refer the
following question to the Court for a preliminary ruling, if a Thai national,
who was married to a Turkish worker duly registered as belonging to the labour
force of a Member State and who, after receiving authorisation to join him,
lived with him without interruption for more than three years, may rely on the
rights arising from the first indent of the first paragraph of Article 7 of
Decision No 1/80 with the consequence that she has a right of residence because
of the direct effect of that provision.

The Court of Justice of the European Union has decided
that the first paragraph of Article 7 of Decision No 1/80 of 19 September 1980
on the development of the Association must be interpreted as meaning that a
member of the family of a Turkish worker, who is a national of a third country
other than Turkey, may invoke, in the host Member State, the rights arising
from that provision, where all the other conditions laid down by the provision
have been fulfilled.

II. The basic considerations of the case

1. a) The right
of residence of members of a family of a Turkish worker duly registered as
belonging to the labour force of a Member State, which follows from Article 7
of Decision 1/80, grants family members residing with the worker tiered rights
of access to the labour market of the host Member State. The ECJ has held that
residence rights are implicitly guaranteed for the purposes of enabling family
members to exercise such rights. The Court has developed the principle that,
subsequent to the initial decision made by the host Member State permitting
entry for the purposes of work and/or family reunion, issues of residence and
conditions of stay are subject to the conditions contained under the
association arrangements. No definition of family members is provided in any of
the relevant instruments. It would appear that Member States also retain
ultimate control over the scope of definition of family members wishing to
reside with the migrant worker. However, guidance may be sought from Article 10
of Regulation 1612/68, which defines the family members of a worker as: (a) his
spouse and their descendants who are under the age of 21 years or are
dependants; (b) dependent relatives in the ascending line of the worker and his
spouse. That provision was repealed but Article 6(2) and Article 7(2) of
Directive 2004/38 also establish the principle that members of the family of a
citizen of the European Union who are not nationals of a Member State have the
right to accompany or join him in the host Member State.

1. b) Another
important point is the family reunification. According to the Court, family
reunification plays a central role in the scheme introduced by the first
paragraph of Article 7 of Decision No 1/80. As it is an essential way of making
family life possible, the family reunification enjoyed by Turkish workers who
belong to the labour force of the Member States contributes both to improving
the quality of their stay and to their integration in those Member States and,
therefore, promotes social cohesion in the society concerned. The purpose of
this first paragraph is to create conditions conducive to family unity, first
by enabling family members to be with a migrant worker and then by
consolidating their position by granting them the right to obtain employment in
the host state. Therefore, the host state could require actual cohabitation by
the Turkish workers and their family members during the first three years, even
where there were accusations of domestic violence, subject to absences for a
reasonable period and for legitimate reasons in order to take holidays or visit
family in Turkey.

The Court of Justice of the European Union therefore
examines: (1) whether under Article 2(1) of the Association Agreement the
Contracting Parties took as their basis grounds that go well beyond considerations
of a purely economic nature; (2) whether it is clear the determination of the
scope of ‘member of the family’ for the purposes of the first paragraph of
Article 7 of Decision No 1/80, irrespective of their nationality; and finally (3)
whether any limitation on the right to family reunification, which would
necessarily result if the rights conferred under the first paragraph of Article
7 of Decision No 1/80 were applied only to members of the family who have
Turkish nationality, would undermine the objective of that provision.

Adjudication method: Reference to the right of residence of members of the family of a
Turkish worker duly registered as belonging to the labour force of a Member
State in conjunction with the family reunification.

Reference to constitutional courts: No.

Reference to International Law: The EEC-Turkey Association (The Association Agreement,
the Additional Protocol, Decision No 1/80), Regulation No 1612/68, Directive
2004/38/EC.

Subject:Evaluation of qualifications in performance of
unemployment assistance.

Summary of the Decision: Classification of unemployed
in Qualification Groups in order to receive unemployment assistance.

I. Facts of the case

According to §
132 SGB III (Sozialgesetzbuch SGB – Social Code), the allocation of employment
to the qualification groups makes expressly conditioned on that there are
appropriate formal or professional qualifications for exercise of employment
("require"). The qualifying groups of § 132 paragraph 2 S 2 SGB III
are its basic structure to such a way that a certain level of training of the
person concerned is allocated in a certain price. However, in accordance with §
75 AMG (Arzneimittelgesetz AMG - Medicines Act), that such expertise
alternatively pharmacists and people who have with a university degree does not
alter the fact that the activity as a pharmaceutical consultant
"requires" such a qualification and is not the meaning of § 132
paragraph 2 S 2 SGB III. According to the facts, the applicant took a grant in
unemployment assistance on the basis of Qualifying Group 2, without having a
university degree as Pharmaceutical Consultant.

The Federal Social Court has decided that according to
these provisions the National Social Court has wrongly confirmed the judgment
of the Social Court, after which the applicant should be granted for the period
from 16.9.2007 to 29.3.2008 higher unemployment assistance on the basis of
Qualifying Group 2.

II. The basic considerations of the case

1. a) The right
to work is a fundamental social right. One of its aspects is unemployment
assistance. Unemployment assistance is a state benefit in the sense of social
assistance payable to the needy unemployed who have no entitlement to
unemployment benefit because they have not fulfilled the qualifying period or
who, although they meet the other eligibility criteria (Promotion of Employment
Act §§ 134 ff.), have already exhausted their entitlement. In contrast to
unemployment benefit, unemployment assistance is financed not from contributions
but by the Federal Government from general tax revenues. Notably, unemployment
assistance is governed by the principle of subsidiarity when the unemployed
person has at their disposal other sources of income or other subsistence
entitlements in respect of their immediate family. Thus, any monetary income
and assets of unemployed individuals are taken into account. Furthermore, the
unemployed are obliged to remedy their state of need by first asserting all
other viable subsistence entitlements. Unemployment assistance currently
amounts to 58 or 56 per cent. of the last monthly net pay.

1. b) In this
case, there is another important consideration as arises the question if there
is a kind of discrimination as an aspect of principle of equality. Specifically,
according to § 132 SGB III and § 75 AMG (Medicines Act), if someone wants to
take unemployment assistance in Qualifying Group 2, he should have a university
degree of Pharmaceutical Consultant. Otherwise, it cannot be considered as main
activity, if someone has only expertise, such as the applicant. Another aspect
of discrimination in this case referred at the beginning of the judgment, as
the applicant had to leave the benefits of unemployment assistance, because she
became a mother. Consequently, there is multiple discrimination at the same
person: a) She cannot take unemployment assistance in Qualifying Group 2, as
she has only expertise but not a university degree (discrimination based on education
level), b) She cannot take the benefits of unemployment assistance, as she
became a mother (gender discrimination, because it wouldn’t have happened if
she was a man). However, the Federal Social Court didn’t refer at these
discriminations.

The Federal Social Court therefore examines: (1)
whether the decisions of the lower courts (National Social Court and Social
Court) comply with the law; and finally (2) the law in accordance with
jurisprudence and bibliography.

Adjudication method: Reference to
the law in conjunction with former jurisprudence, bibliography and certain
websites.

Related social rights: Right to social assistance/ Right to a minimum of subsistence.

Constitutional provisions: Articles 1.1 and 20.1 of German Constitution.

Subject:Application of the principles of minimum subsistence
and human dignity in order to discern the constitutionality of long-term
unemployment assistance.

Summary of the Decision:

I. Facts of the case

The Fourth Act for
Modern Services on the Labour Market of 24 December 2003 (so-called „Hartz IV
legislation“) merged the (long-term) unemployment assistance
(Arbeitslosenhilfe) and the social assistance benefits in a uniform,
means-tested allowance. The benefits are only granted where no sufficient means
of one’s own, especially income or property, exist. This resulted as from 1
January 2005 in
a rounded amount of €311 (90 per cent) for spouses, civil partners and live-in
partners, in a rounded amount of €207 (60 per cent) for children before
completing the age of 14 and in an amount of €276 (80 per cent) for children
from the beginning of their 15th year of age.

The Federal Constitutional Court has decided that
these provisions do not comply with the constitutional requirement following
from Article 1.1 of the Basic Law (Grundgesetz – GG) in conjunction with
Article 20.1 GG to guarantee a subsistence minimum that is in line with human
dignity.

II. The basic considerations of the case

1. a) The
fundamental right to guarantee a subsistence minimum that is in line with human
dignity, which follows from Article 1.1 GG in conjunction with the principle of
the social state under Article 20.1 GG, ensures every needy person the material
conditions that are indispensable for his or her physical existence and for a
minimum participation in social, cultural and political life. Beside the right
from Article 1.1 GG to respect the dignity of every individual, which has an
absolute effect, this fundamental right from Article 1.1 GG has, in its
connection with Article 20.1 GG, an autonomous significance as a guarantee
right. This right is not subject to the legislature’s disposal and must be
honoured; it must, however be lent concrete shape, and be regularly updated, by
the legislature. The legislature has to orient the benefits to be paid towards
the respective stage of development of the polity and towards the existing
conditions of life. As regards the types of need and the means that are
necessary to meet such need, the extent of the constitutional claim to benefits
cannot be directly inferred from the constitution. It is for the legislature to
lend it concrete shape; it has latitude for doing so. In order to lend the
claim concrete shape, the legislature has to assess all expenditure that is
necessary for one’s existence consistently in a transparent and appropriate
procedure according to the actual need, i.e. in line with reality.

1. b) The
legislature’s latitude for assessing the subsistence minimum corresponds to a
cautious review of the provisions in non-constitutional law by the Federal
Constitutional Court. As the Basic Law itself does not admit of exactly
quantifying the claim, substantive review is restricted, as regards the result,
to ascertaining whether the benefits are evidently insufficient. Within the
material range which is left by the review of evident faultiness, the
fundamental right to guaranteeing a subsistence minimum that is in line with
human dignity cannot provide any quantifiable guidelines. It requires, however,
an examination of the bases and of the assessment method of the benefits to
ascertain whether they do justice to the objective of the fundamental right. In
order to ensure a traceability of the extent of the statutory assistance
benefits that is commensurate with the significance of the fundamental right
and to ensure the review of the benefits by the courts, the assessment of the
benefits must be viably justifiable on the basis of reliable figures and
plausible methods of calculation.

The Federal Constitutional Court therefore examines:
(1) whether the legislature has taken up and described the objective of
ensuring an existence that is in line with human dignity in a manner that does
justice to Article 1.1 GG in conjunction with Article 20.1 GG; (2) whether it
has, within the boundaries of its latitude, chosen a fundamentally suitable
method of calculation for assessing the subsistence minimum; (3) whether in
essence, it has completely and correctly ascertained the necessary facts; and
finally (4) whether it has kept within the boundaries of what is justifiable
within the chosen method and its structural principles in all stages of
calculation, and with plausible figures. To make this review by the Federal
Constitutional Court possible, the legislature is obliged to plausibly disclose
the methods and stages of calculation employed in the legislative procedure. If the legislature does not sufficiently meet this
obligation, the ascertainment of the subsistence minimum is no longer in
harmony with Article 1.1 GG already due to these shortcomings.

Adjudication method Reference to the principle of Social State in conjunction with the
protection of human dignity.

Reference to other constitutional courts: No.

Reference to International Law: No.

Relation with former jurisprudence/Innovative elements: The Court has followed its traditional adjudication
method. However, it is the first time that a legislation has been found
unconstitutional on the basis of non compliance with Social State principle
alone. In addition, the court has reversed the burden of proof regarding the
necessary economic means for the fulfilment of the related rights, imposing to
the legislator to proof that it has used objective and scientific elements in
order to specify the minimum of subsistence for the related allowance.

Bibliography: S. E. Casenote, The Fundamental Right to the Guarantee of a Subsistence
Minimum in the Hartz IV Case of the German Federal Constitutional Court, German
Law Journal, 2011.1961.

Key words: Minimum of subsistence, human dignity, principle of the social state.

Commentator/contact details: George Katrougalos, Democritus
University of Thrace, Greece, gkatr@otenet.gr.

Related social rights: Right to a minimum level of subsistence [“conditions minimales d’existence”].

Constitutional provisions: “Unwritten constitutional right”.

Subject:Τhe exclusion of three aliens
from social assistance was considered to be a violation of an implied
constitutional right to a minimum level of subsistence, a necessary for an
existence in conformity with human dignity

Summary of the Decision:

I. Facts of the case

The three
brothers V. lived since 1980 together with their mother as recognized refugees
in Switzerland. In 1987, they were condemned to prison sentences and an
expulsion order was issued against them. After their expulsion to
Czechoslovakia, the asylum granted to them lapsed in accordance with Swiss
legislation. In September 1991 the three brothers re-entered Switzerland
illegally. They have since lived in X. Renewed expulsion to (now) the Czech
Republic has not been possible because the brothers V. had had their
citizenship withdrawn; in order to regain it, they would have to make an
application for this, which the brothers V. have however not done. Following
their re-entry to Switzerland, the brothers V. applied to the municipality of
X. for social support, which the municipality as well as the executive
authorities of the Bern canton (Regierungsrat
– Government Council) refused. The Bern authorities maintained that the
brothers V. had it in their power to apply for renaturalization, which would allow
them to return to the Czech Republic and take up gainful employment there. By
their refusal to make such an application they were deliberately maintaining
their state of need. As a result, the authorities argued that the welfare
benefits could be fully withdrawn from them. Against the order of the
Government Council, the brothers V. lodged a constitutional complaint on 5
December 1994.

The Federal Court (Bundesgericht) held that the exclusion
of three aliens from social assistance was a violation of an implied
constitutional right to a minimum level of subsistence. The right encompasses
what is necessary for an existence in conformity with human dignity and can be
invoked by both Swiss citizens and aliens. The Court dismissed the
abuse-of-rights claim, holding that it could not be required from the
applicants to apply to the Czech authorities for renaturalization.
The Federal Court thus found the constitutional complaint to be justified and
set aside the decision of the Bern’s Government Council.

.

II. The basic considerations of the case

1. …

2. a) The federal Constitution does not explicitly
provide for a fundamental right to a subsistence guarantee. The Constitution
also includes however unenumerated constitutional rights. [Previous cases] have
assumed a guarantee of freedoms not mentioned in the Constitution in relation
to powers constituting a prerequisite for the exercise of other freedoms
(explicitly mentioned in the Constitution), or otherwise evidently
indispensable components of the democratic constitutional order of the
Federation. In order not to overstep the boundaries set for the constitutional
judge, the Federal Court has always also tested whether the guarantee in
question already corresponded with a widespread constitutional reality in the
cantons and was upheld by a general consensus.

b) The guaranteeing of elementary human needs
like food, clothing and housing is the condition for human existence and
development as such. It is at the same time an indispensable component of a
constitutional, democratic polity. To that extent, the subsistence guarantee
fulfils the preconditions for being guaranteed as an unwritten constitutional
right.

The further
question then arises whether such a fundamental right is upheld by a general
consensus. This consensus is to be measured not exclusively by the written
constitutional law of the cantons... It may also result from the practice
actually followed and from constitutional scholarship or from other sources. As
far as written cantonal constitutional law is concerned, two cantonal
Constitutions explicitly guarantee a fundamental right to a subsistence
guarantee. Other cantonal Constitutions have provided for social assistance in
the form of constitutional policy clauses or legislative mandates. The recent
constitutions of five other cantons clearly refrain from establishing an
individual legal entitlement to a subsistence guarantee. Nonetheless, this is
hardly based on a fundamental reservation, but more on the consideration that
State social assistance has by its essence a subsidiary character and requires
statutory regulation. At the statutory level, the position adopted in all
cantons, is that those in need are to be given assistance where the
preconditions are met. The principle that the citizen who has fallen into
economic need must be supported has long been known to Swiss law; it goes back
to the sixteenth century. The Federal Court for its part has in older decisions
already stated that it is both a precept of humanity and a duty inherent in the
purpose of the modern State to protect persons on its territory, where
necessary, from physically perishing.

Legal scholars
virtually unanimously recognize the fundamental right to a subsistence
guarantee, generally holding it an unwritten constitutional right. Legal
scholars also refer, however to various other constitutional foundations: the
constitutional principle of human dignity, which guarantees every person of
what they can expect from the community because of their status as human
beings; the right to life as a core content of personal freedom, which would no
longer be guaranteed were the most minimum prerequisites for survival not
ensured; personal freedom in its manifestation as a guarantee of all elementary
aspects of personality development; the equality principle, seen as also
encompassing the function of guaranteeing a minimum of material justice;
finally, the competence norm, according to which those in need are to be
supported by the canton where they reside, which can also be understood as an entitlement
to a fundamental right.

c) If it can accordingly be taken that a
constitutional right to a subsistence guarantee is supported by a wide-ranging
consensus, the further question arises as to the justiciability of this right.
Whereas fundamental rights as defensive entitlements raise no problems in this
connection, entitlements to benefits presuppose that they are adequately
defined and can be concretized and implemented by the judge with the procedures
and means at his disposal. In this connection, the judge has to comply with the
functional bounds on his competence. He has not, in view of the scarcity of
State resources, the authority to set priorities in allocating resources.
Accordingly, only a minimum of State benefit [“Minimum staatlicher Leistung”] can be directly required as a
fundamental right and be justiciable.

The fundamental right to a subsistence guarantee meets
these justiciability requirements. It is as such oriented to the minimum
required as a fundamental right (assistance in situations of need). The associated State expenditure is recognized on the
basis of social assistance legislation in the cantons; it requires no further
financial policy decisions. What constitutes an indispensable prerequisite for
a life in accordance with human dignity is clearly recognizable and accessible
to judicial determination. What is at issue here is not, however, a guaranteed
minimum income. All that is
constitutionally required is that which is essential for an existence in
accordance with human dignity and able to guard against a situation where
people are reduced to beggars, a condition unworthy of being called human.
It is in the first place a matter for the [political branches of the State] on
the basis of legislation to determine the nature and extent of the benefits
required in the specific case. In this connection, both cash benefits and
benefits in kind come into consideration.

d) Where a fundamental right is based on human
rights, it is due both to Swiss citizens and foreigners. … [It is] both a
precept of humanity and also a duty inherent in the purpose of the modern State
to protect persons on its territory where necessary against physically
perishing. The scope of the fundamental
right to a subsistence guarantee is thus not confined solely to Swiss
nationals; it also extends to foreigners, irrespective of their status of
residence.

e) …

3. a) The
support requirements are probably of a different nature, and the benefits may
also be differently assessed in the case of a merely de facto stay of transient nature. The refusal of any support
cannot however be reconciled with the constitutional right to a subsistence
guarantee.

b) Abuse of
rights is present where a legal institution is used, contrary to its purpose,
to realize interests that that legal institution is not intended to protect.
Social assistance has the purpose of preventing and removing situations of
need. The causes of the need do not come into play. The complainants cannot be
held responsible for their maintenance themselves, since they are not entitled
to be gainfully employed in Switzerland. If in this position they apply for
welfare benefits they are not resorting to this legal institution for a purpose
foreign to it.

c) The
Government Council argues that the complainants would be able to apply to the
Czech authorities for renaturalization, which would enable them to return to
that country and be gainfully employed there. Whether this would be possible
today, according to Czech law, seems doubtful. In any event, no abuse of right
can be established in the fact that the complainants do not want to regain
Czech citizenship in light of the facts of the present case: they have been
recognized as refugees since 1980, when they left their homeland; they have
lived for many years in Switzerland; their mother has become a Swiss citizen;
and as recognised refugees they were not able to maintain contact to their home
country.

d) … The
complainants are not refusing to make an application for renaturalization to
the Czech authorities because they want to draw maintenance benefits from the X
municipality. They are doing so at most because they want to stay in
Switzerland, the country where they have, with a brief interval, lived since
1980 and that in the past recognized them as refugees. Their state of need is a
consequence of the fact that they can again be expelled and are not allowed to
be gainfully employed [in Switzerland]. Given this factual position, however,
they are not resorting to the legal
institution of social assistance contrary to its purpose. Manifest abuse of
rights is not present. The decision challenged accordingly infringes the
constitutional right to a subsistence guarantee.

Adjudication method: Reliance on an “unwritten constitutional right” –[ungeschriebenes Verfassungsrecht] as a prerequisite for the
exercise of explicitly guaranteed rights; additional reference to the
constitutional guarantees of human dignity, the right to life, personal
freedom, the equality principle, allocation of competences between state
authorities concerning social assistance; the guaranteeing of elementary human
need as “an indispensable component of a
constitutional, democratic polity”.

Reference to other constitutional courts: No.

Reference to International Law: No.

Relation with former jurisprudence/Innovative
elements:While
in previous cases, the Swiss Federal Court, Switzerland’s highest Court, had
already discerned a state obligation to provide social assistance, in this
seminal 1995 case, it recognized for the first time an individual claim that is
subject to judicial enforcement. Thus, the V.
case and its progeny served as a catalyst for the explicit guarantee of the
“right to assistance and care, and to the financial means required for a decent
standard of living” for persons in need and unable to provide for themselves
among a handful of social rights in the 1999 Constitution (Art. 12). However,
both under the previous and the current Constitution, the Swiss Federal Court
has in the meantime adopted a rather restrictive approach that tends to
overemphasize subsidiarity considerations as a prerequisite of constitutional
protection. Furthermore, it reduces the constitutionally guaranteed mimimum
level of subsistence for foreigners without a residence permit in Switzerland
to benefits in kind, such as food, housing and sanitary conditions.

Bibliography:.

- D. Sprumont, The Unwritten Constitutional Right to
Subsistence, Brief Comment of 27 October 1995 Judgment of the Swiss Federal
Court in the Perspective of a Right to Health Care, European Journal of Health
Law 5 (1998), 411-414.

Subject:Implementation by the legislator of the right to
housing as a fundamental one in order to strengthen its enjoyment.

Summary of the Decision:

I. Facts of the case

In this case the
Italian Constitutional Court had the opportunity to examine the
constitutionality of Law 891/1986 concerning the acquirement of soft loans by
workers in order to purchase their primary residence. The provinces of Trento
and Bolzano considered the conditions for the receipt of these loans to be
incompatible with relevant provincial legislation thus invading the area of the
exclusive legislative and administrative authority of Italian provinces (Decree
N. 381/22 March 1974).

The Italian Constitutional Court decided that the Law
891/1986 was constitutional and that the complaint was ill-founded because
the legislature had the competence and the obligation to implement a
fundamental social right as the right to housing thus strengthening its
enjoyment.

II. The basic arguments of the case

1. a) The right to housing is not expressly guaranteed in the Italian
Constitution, but it has been gradually recognized as a fundamental social
right via the jurisprudence of the Italian Constitutional Court. Its
constitutional foundation can be traced in Arts 2, 3 and 32 in the sense that
the right to housing furthers the expression of human personality (Art. 2 of
the Italian Constitution), of equal
dignity (Art. 3) and of the right to health (Art. 32). Its foundation can be also located in Arts. 42 and 47 cl. 2 of the
Italian Constitution which specifically states that: ‘The Republic promotes
house and farm ownership and direct and indirect shareholding in the main
national enterprises through the use of private savings’ as well as in Art. 14
of the Italian Constitution guaranteeing
that: ‘The home is inviolable’ (Art. 14 §1) and that the ‘personal domicile is
inviolable’ (Art. 14 §2) whilst according to the Court the right to housing is
also protected under Art. 36 of the Italian Constitution under the penumbra of
the subject’s dignified existence. In this
constitutional framework the right to housing has been acknowledged by the
Italian Constitutional Court as the right to the availability of a residence,
guaranteed by public authorities.

b) In the present case the Court considered
the following. In the beginning the Court held that: i) the
constitutional principle of subsistence requires the provision of state
measures of various kinds that aim at realizing the right to housing and b) the
national legislature must not abdicate the constitutionally founded autonomous
legislative authority of the provinces except for reasons of state interest,
which is “imperative and compelling” and by introducing rules that are deemed
to be crucial for the implementation of these interest. In this line of
thinking the question to be answered was whether the statute in question was
furthering a compelling national interest.

The Court
applied a strict scrutiny test. Firstly it observed that the very purpose of
the statute was to encourage workers and specifically the younger ones to
acquire a primary residence. According to the Court this legislative goal
favored the realization of the state form and the constitutional system as a
social and democratic. The Court considered that the right to housing (diritto
all’abitazione) as provided in Art. 47 cl. 2 of the Italian Constitution is one
of the essential requirements for the characterization of the democratic state
as social. Moreover, from the constitutional guarantee (Art. 47 cl. 2) the
Court reached the following conclusion: ‘The Art. 47 cl. 2 provided that the
Republic should render effective the right to housing thus considering the
satisfaction of this right is imperative and demands the joint commitment of
the whole government (state, autonomous regions or provinces, local authorities
etc.)’. Based on these thoughts the Court concluded that the scope of the
statute in question was to ensure a level of guarantee for the entire national
territory for a fundamental social right, i.e. the right to housing. The goal
of the legislature was to create a minimum guarantee of this right for all the
citizens of the Republic by national legislation, thus assuring the maximum
effectiveness to a fundamental social right. For this reason the coordinated
effort between all public authorities was needed. In this frame the provisions
of Law 891/1986 were deemed constitutional.

According to the conclusion of the Court regarding
specifically the nature and value of the right to housing: ‘The right to
housing represents one of the fundamental features of the Democratic State
enshrined by the Constitution. The task to provide the minimum conditions of a
Social State and guarantee to the largest possible number of citizens a
fundamental social right, such as the one to housing, contributes to the
achievement of a greater level of human dignity and cannot be renounced by the
state under any circumstances’.

Adjudication method: Reference to the fundamental character of the right to housing and thus
to the need of its minimum effective protection in conjunction with the enhanced
protection of human dignity and the Social State..

Reference to other constitutional courts: No.

Reference to International Law: No.

Relation with former jurisprudence/Innovative elements: There have been previous judgements related to the
protection of the right to housing in the jurisprudence of the Italian
Constitutional Court. What the Italian Constitutional Court underlined for the first time was that the
guarantee of the right to housingwas a fundamental one and thus imposed on the legislator the obligation toprovide it with a minimum of effectiveness. According to this line of thinking it would
be the task of the legislature to provide a level of implementation for the
enjoyment of this right in order to create the minimum conditions for
preserving the Social State and safeguarding the citizens’ human dignity.

Related social rights: Maintenance principle as part of the “traditional principles of the
professional civil service”.

Constitutional provisions: Article 33.5 of German Constitution.

Subject:The Court stateted that the remuneration received by
the professors paid according to salary scale W 2 in Hesse infringes the
constitutional maintenance principle (Alimentationsprinzip),
i.e. the state’s obligation to take care of civil servants’ welfare.

Summary of the Decision:

I. Facts of the case

In 2002, a new remuneration system for professors consisting of fixed basic salaries and variable pay for performance was introduced (remuneration ordinance W). In 2005, the plaintiff in the original proceedings, who was born in 1965, was appointed university professor and assigned an established post in salary scale W 2 of remuneration ordinance W while attaining the status of a civil servant for life.

After unsuccessful objection proceedings, he filed an action against the Land (state) of Hesse in which he sought a declaratory judgment holding that his maintenance from salary scale W 2 does not satisfy the constitutional requirements placed on a remuneration that is in keeping with the office held.

The Second Senate of the Federal Constitutional Court has ruled (with 6:1
votes) that the remuneration received by the professors paid according to
salary scale W 2 in Hesse infringes the constitutional maintenance principle (Alimentationsprinzip), i.e. the state’s
obligation to take care of civil servants’ welfare, derived from Article 33.5
of the Basic Law (Grundgesetz – GG) and is hence unconstitutional. The legislature
is ordered to enact provisions which are in conformity with the Constitution
with effect from 1 January 2013 at the latest.

II. The basic considerations of the case

1. a) The maintenance principle obliges the employer to take lifelong care of the civil servant’s welfare and that of his or her family and to pay appropriate maintenance according to the civil servant’s rank, the responsibility involved with his or her office and according to the importance of the permanent civil service for the general public, in keeping with the development of the general economic and financial circumstances and the general standard of living. Linking maintenance to criteria such as rank, which are proper to the civil service and directly related to the office, intends to ensure that the salary is graduated according to the different significance of the offices. Here, comparisons are possible and indicated not only within a given remuneration ordinance but also between the different remuneration ordinances. Furthermore, whether maintenance is in keeping with a given office is determined by comparing it to the income which is earned in comparable positions outside the civil service that can be attained on the basis of a comparable training. However, in view of the systemic differences existing between the civil service and the private sector, the conditions (only) need to be comparable on the whole.

b) The legislature has broad leeway when putting into concrete terms the state’s obligation to take care of civil servants’ welfare in a manner that is in keeping with their office. The guarantee, implied in Article 33.5 GG, of a maintenance that is “in keeping with the office” merely constitutes a constitutional directive for concretization that establishes an obligation for the legislature (Gestaltungsdirektive). A cautious review by the Federal Constitutional Court, which is restricted to applying the standard of evident inappropriateness (evidente Sachwidrigkeit), corresponds to the legislature’s broad leeway (first pillar of the constitutional “maintenance” principle).In addition, in order to ensure compliance with constitutional standards, procedural safeguards in the shape of obligations to state reasons, to examine and to observe are required (second pillar of the constitutional “maintenance” principle).

c) The legislature’s broad leeway also covers the introduction of new performance elements in remuneration, and the modification of existing ones. In principle, a two-stage remuneration system consisting of fixed basic salaries and variable pay for performance can exist instead of a remuneration system whose point of reference is the basic salary and which is structured according to seniority levels. If, however, the legislature replaces one system by the other, apart from the demands placed by the maintenance principle, the other constitutional principles relevant in this context must be satisfied. In order to be able to compensate a maintenance deficit arising from low basic salary rates, the possibility of achieving pay for performance must be open to every office-holder, and pay for performance must show sufficient continuity. With regard to the group of professors, this is the case, where the legislature has formulated the criteria for awarding the pay for performance in a sufficiently clear and definite manner and where the individual professor has, under clearly defined, predictable prerequisites that can be fulfilled, an enforceable claim to being awarded pay for performance.

2. a) In salary scale W 2, the fixed basic salary rates of remuneration ordinance W are not sufficient for securing a livelihood to a professor that is appropriate to his or her rank, to the responsibility involved with the office and the importance of the permanent civil service for the general public. This becomes evident primarily from the comparison of the basic salary rates of salary scale W 2 with the basic salary rates of

remuneration ordinance A and is confirmed by a comparison with the incomes outside the civil service. The basic salary rates in salary scale W 2 do not do justice to the high demands placed on the academic career and the qualification of the holders of these offices or to the great variety and the high demands of the tasks in research, teaching and administration involved with the office of professor. Furthermore, the comparison of salary scale W 2 with the salary of related groups of employees in the private sector makes evident that the W 2 professors are situated far down in the respective salary scale.

b) The evident inappropriateness of the basic salary rates is not eliminated by the fact that the possibility of attaining pay for performance is provided to the office-holders by the legislature because the possibility is obviously not open to every office-holder and pay for performance does not show sufficient continuity. According to the statutory configuration, there is no right to be awarded pay for performance but only a right for the award to be decided on a basis that is free from abuse of discretion. The determination of the amount of the pay for performance is a discretionary decision that is subject to but a few statutory regulations. As according to the statutory configuration, an overall volume of pay, i.e. an overall amount for the annual award of pay for performance, must be determined, the award of individual pay for performance must take into account the extent to which the overall volume has already been drawn upon by the earlier granting of pay for performance. The professors who “are late” will only receive low pay for performance or none at all, without this depending from the professor’s individual performance or the professor being able to influence this in any way. The other modalities of the award of the pay for performance prove that in its present configuration, its nature is merely that of an addition to the salary and not that of maintenance. The pay for performance can be awarded not only on a permanent, but also on a temporary basis or as a one-off payment, and therefore often has little

effect on pension payments.

3. The legislature has several options for eliminating the maintenance deficit that was held unconstitutional. The legislature can ensure a

maintenance level in keeping with the office through the amount of the basic salary rates or, for instance, organize the pay for performance in

such a way that it complies with minimum requirements with regard to maintenance. In view of these legislative possibilities, after opting

for a specific model of new provision that implements the requirements under constitutional law, the legislature is obliged to observe whether

the model is able to function and whether it is compatible with the logic of the system, and to make improvements that may prove necessary.

If the model chosen for the future does not prove to be viable or if the actual development deviates from the predicted one for other reasons,

the legislature
is obliged to make corrections of the configuration of the system of
remuneration or of the amount of salaries.

Adjudication method: Use of the test of “evident impropriety” to strike down a state
statute; protection of core content of maintenance principle; protection of
fundamental rights through procedural safeguards; freedom of research and
teaching (Article 5.3 of German Constitution) as an objective constitutional
principle..

Reference to other constitutional courts: No.

Reference to International Law: No.

Relation with former jurisprudence/Innovative elements:In the general absence of clear standards to
judicially identify the substantive
scope of the state obligation to pay appropriate maintenance to civil servants
according to the German Constitution, the German Constitutional Court
emphasizes the importance of procedural
safeguards. It thus extends to civil service law the procedural approach
enunciated in the Hartz-IV judgment concerning social benefits legislation. On
the other hand, the Court emphasizes the broad legislative latitude in
implementing the state obligation to take care of civil servants’ welfare. It
thus applies a lenient substantive test of “evident inappropriateness” (“evidente Sachwidrigkeit”). The Court
concludes, however, that the Hesse legislation failed to meet even those lax
constitutional requirements in substantive terms. The holding has implications
for other sectors of civil service law and beyond. It reiterates the potential
importance of the procedural approach to ensure a certain justiciability of
social rights guarantees. On the other hand, even beyond the realm of human
dignity that was implicated in the Hartz-IV decision, the Constitutional Court
holding demonstrates that the relaxed scrutiny of legislative action should not
be considered as tantamount to an unqualified deference to legislative bodies.

Constitutional provisions: Subparagraphs 10, 11 of the French Constitution of
1946 as implemented by the Arts L 345-2 and 345-2-1 (Code of Family and Social
Action) regulating the right to emergency housing.

Subject:Establishment of a right to emergency housing
according to the law and Constitution.

Summary of the Decision:

I. Facts of the case

The applicant of the case was a French national who has
been living in France in Val de Marne for many years when his apartment was
destroyed by fire in the night of January 17-18 2012. After being housed overnight
by the local authorities and the next day by the Social Monitoring Service he
found himself without accommodation. Thus he
referred to the judge of the first instance administrative court of Paris in
order to oblige the local authorities with a court order to provide him with
emergency housing. His request was rejected and thus the applicant appealed to
Conseil d’État.

The Conseil d’État was called upon to decide whether
the applicant was qualified to be provided with emergency housing and whether
the lack of response on behalf of the administrative authorities (Ile de
France, Prefecture) has infringed the right to emergency housing. Although the
Conseil d’État rejected the appeal in the basis that the applicant has received
alternative housing in the meantime, it nevertheless acknowledged in its
judgement the right to emergency housing as a fundamental right binding for the
administrative authorities. It also considered the judicial branch as the sole
competent authority to determine whether in a specific case the right to
emergency housing has been infringed. According to the Court: ‘The judge may
order any action necessary to protect a fundamental freedom in the cases where
administrative authorities have exercised their competences in a seriously and
manifestly illegal manner’ (see, Art. L 521-2 of the Code of Administrative
Justice).

2. The basic considerations of the case

1. a)The right to
housing can be founded in subparagraphs 10, 11 of the French Constitution of
1946 where it is stated that: ‘The Nation shall provide the individual and the
family with the conditions necessary to their development. […] It shall
guarantee to all, notably to children, mothers and elderly workers, protection
of their health, material security and leisure. All people who by virtue of
their age, physical or mental condition, or economic situation are incapable of
working shall have the right to receive suitable means of existence from
society’. Nevertheless as a true Rule of Law, the French legal system, in the
last twenty years, guaranteed the right to housing in its legislation. The Quilliot Act (22 June 1982) acknowledged
that: ‘The right to
housing is a fundamental right’. The MermazAct (6 July 1989) protected the tenants’ rights. Further, the BessonAct (31 May 2000) states that: ‘Guaranteeing the right to housing is a duty of solidarity incumbent
upon the whole nation’. The BessonAct did not provide with a relief
neither recognized the right to housing as enforceable. It rather recognized
the obligation of the state to provide assistance to those lacking of a
permanent residence. Nevertheless with the Bill No 2007-290 (5-7 March 2007) an
enforceable right to housing was introduced in order for the social cohesion to
be promoted. This new legislative intervention provided that all people who
qualified for social housing after January 1st, 2012 and have been
waiting for an abnormally long period without an alternative housing will be
able to take their case to a mediation committee and subsequently appeal to the
administrative courts. Consequently, the administrative courts will be able to
order the state to house the applicants and if they fail in their obligation to
be subjected in a fine.

b) The Conseil d’État examined the arguments both of the
applicant and the public administration. Namely the applicant underlined that
the local authorities had not provided him with access to emergency housing,
exposing him to bad weather conditions and possible attacks, thus violating the
French legislation (Arts L 345-2, L345-2-2, L 345-2-3 of the Family and Social
Action Code) and Arts 3 and 8 of the ECHR protecting dignity and private life.
On its part the public administration argued that the applicant was not
deprived of its right to access and that the local authorities had the sole
competence to set priorities between those applying for social housing. As far
as the public administration was concerned, the applicant did not belong in one
of the high risk groups, he belonged in a less vulnerable group, since he was a
man, quite young and of excellent health and thus his application was not
hiererchized as urgent.

The Conseil
d’État considered this line of arguments, took account of the relevant
provisions of the ECHR and focused on Arts L 521-2 of the Code of Administrative
Justice (supra) and Arts L 345-2 and
34-2-2 of the Family and Social Action Code regulating the enforcement of the
right to emergency housing and rendering it possible for ‘any homeless person
in distress, medical, psychological…’. According to the Court, the guarantee of
emergency housing as a fundamental right did not provide the public
administration with a margin of appreciation to prioritize among the citizens
in need of social housing,thus requiring from the competent authorities: ‘to deal with all
requests received and determine which of the various policy instruments at
their disposal could be applied and what procedure would be followed in each
specific case, given the age, health status and family status of the person
concerned’. Therefore, the Court rendered the right to emergency housing as a
directly enforceable fundamental right.

At last Conseil d’État retained for the judicial
branch the sole competence to determine the purposes of the legislator in acknowledging
the right to emergency housing as an enforceable social right. Thus the Court
underlined that: ‘it is the task of the first instance judge to
reveal whether the work performed by the administrative authorities has
infringed a fundamental freedom in a seriously and manifestly illegal manner
and when it has serious consequences for the person concerned’.

Adjudication method: Reference to the protection of human dignity.

Reference to other constitutional courts: No.

Reference to International Law: European Convention of Human Rights and Fundamental
Freedoms –Council of Europe.

Relation with former jurisprudence/Innovative elements: The judgement is historical in the sense that for the
first time French Supreme Court hasrecognized the right to housing as fundamental.

Bibliography: Marie Loison, The implementation of an enforceable right to housing in
France, European Journal of Homelessness, December 2007, pp. 185-197.

Subject:The Court examined the constitutionality of
legislation regarding unemployment according to the obligation of
the public authorities to maintain “a public social security regime for all
citizens which guarantees social assistance and benefits in situations of need,
particularly of unemployment”.

Summary of the Decision:

I.Facts of the
case

In this case the
Constitutional Court studied the constitutionality of article 219.2 of the
General Social Security Act (“Ley General de la Seguridad Social” –LGSS-)
passed by Royal Legislative Decree 1/1994 (20 June). This article laid down the
extinction of the social security unemployment subsidy for those unemployed
above the age of fifty-two and in receipt of an income higher than 75% of the
minimum interprofessional salary, who had consumed their ordinary unemployment
benefit entitlement.

The judicial
body that introduced the question of unconstitutionality considered that art. 219.2 LGSS was in contradiction of art.
41 of the Spanish Constitution (“Constitución española –CE-), which obliges the
public authorities to maintain “a public social security regime for all
citizens which guarantees social assistance and benefits in situations of need,
particularly of unemployment”.

The
Constitutional Court did not find art. 219.2 LGSS to be in contradiction of CE
art. 41 since it had no affect at all on the “institutional guarantee” of the
public social security regime. It stated that the right citizens may have to
social security is a legally constituted right whose contents may accordingly
be constituted by the Legislator in accordance with each specific situation of
need.

II.The Basic arguments of the case

In the first
place it should be remembered that CE art. 41 is to be found in Chapter III of
the Constitution’s 1st Title, under the rubric “Concerning the guiding
principles of social and economic policy” and that CE art. 53.3 restricts the
applicability of the principles and social rights contained in said Chapter
when it lays down that their recognition, respect and protection “will inform
positive legislation, judicial praxis, and the actions of the public
authorities”; but that those principles and rights “may only be pressed in
ordinary courts in accordance with the provisions of the laws that developing
them”. The most prevalent interpretation in Spanish doctrine and jurisprudence
is that Chapter III of the Constitution’s 1st Title does not constitute genuine
subjective rights on the exclusive basis of its text; rather, for such rights
to be constituted they must have been established in a law developing the
constitution.

In its Sentence,
the Constitutional Court began by acknowledging that in previous jurisprudence
it had given its opinion on numerous occasions regarding the scope of the obligations
imposed on the public authorities by CE art. 41. Thus, it recalled that CE art.
41 makes it incumbent upon the public authorities to establish –or uphold- a
system of protection corresponding to the technical characteristics of the
means of cover proper to a social security system; in other words, that said
precept enshrines as an “institutional guarantee” a public regime “the
preservation of which is deemed essential if the constitutional principles are
to be guaranteed, by creating… a nucleus or redoubt inviolable by the
Legislator” (STC 32/1981), which has to be preserved “in terms which match the
image society has of it at a given time and place” (STS 26/1987 and 76/1988).

Once this
limitation of inviolability has been cleared away, the right citizens may have
to social security is a right of strictly legal constitution, the Legislator
being free to modulate the protective action of the system in view of economic
and social circumstances which are imperative for the right’s viability and
efficacy (STC 65/1987, among others). From this doctrine the Constitutional
draws the conclusion that the legal precept at stake cannot infringe CE art. 41
in so far as it has no effect at all on the institutional guarantee of the
public regime of social security. It is the Legislator who must decide the
degree of protection appropriate to different social needs and to articulate
technically the protective systems aimed at covering them.

Reference to other constitutional courts: No.

Reference to International Law: No.

Relation with former jurisprudence/Innovative
elements: As the Constitutional Court makes clear in this
sentence, and as set out in the summary, various previous pronouncements
mentioned the legal efficacy of the right to social security in the Spanish
legislation. Thus, as far as social rights in general or the right to social
security in particular are concerned, it is not an innovative sentence in
Spanish jurisprudence.

Nevertheless, it
is of interest because it draws on previous jurisprudence of the 1980s and
applies it to a current case, while insisting on the point that CE art. 41 does
not constitute of itself a fundamental right with a specific content which may
be opposed to the Legislator. Nevertheless, the Constitutional Court also
insists on the fact that CE art. 41 lays
down the obligation of the public authorities to create a public social
security regime in the image social awareness has of it at a given time and
place, and that this obligation is guaranteed by the Constitution. For that
purpose it avails itself of the concept “institutional guarantee”.

Society of Un-aided Private Schools of Rajasthan v. Union of India and Another

Country/Court: India / Supreme Court of India

Year of Judgment/Nr of Decision:
2012 / (2012) 6 S.C.C.1

Related social rights: Right to education

Constitutional provisions: Article 21A and Article 14
of the Constitution of India

Subject: The state can
secure the right to education by mandating that all schools, public or private,
reserve 25% of their seats for disadvantaged children in their neighbourhood.

Summary
of the decision:

I.Facts:

In 2002, Article 21A was inserted into the
Constitution of India by an amendment, to ensure that “the State shall provide
free and compulsory education to all children of the age of six to fourteen
years in such manner as the State may, by law, determine.”
The Government of India subsequently enacted the Right of Children to Free and
Compulsory Education Act, 2009 (The Right
to Education Act). This Actcasts
an obligation on all education institutions, including private schools, to
admit children of the ages six to fourteen years, from their neighbourhood, on
the principle of social inclusiveness. The Society of Un-aided Private Schools
of Rajasthan brought a constitutional challenge to this Act, and particularly
to Section 12(1)(c), which required all unaided (private) schools to set aside
25% of their seats for children from disadvantaged backgrounds in the
neighbourhood of such schools.

The Supreme Court held, by
majority, that the challenged provisions were not ultra vires the Constitution, and that such obligation could be
cast upon unaided schools. However, the Supreme Court held that such obligation
could not be cast upon schools specifically established and administered by minorities.

II.Basic
Considerations

1.The challenge to the obligation to
provide free education to children from disadvantaged backgrounds is premised
on the argument that Article 21A casts an obligation on the State. Accordingly private, unaided
institutions should not, it was argued, be compelled to provide free education.
The Court held that although the obligation was cast upon the state, Article
21A further provided that the state could determine, by framing laws, how this
obligation should be discharged. In the present case, the court pointed to the
fact that unaided schools were entitled to compensation from the state for
expenses undertaken to provide free education to disadvantaged children.
Consequently, it was held that imposing these obligations on unaided schools
was not in breach of Article 21A.

2.The Right to Education Act was
further challenged on the grounds that it infringed upon the rights of private
persons and bodies to engage in any occupation, trade or business, under
Article 19(1)(g) of the Constitution of India. The requirement of providing 25%
of seats to disadvantaged children could not, it was argued, be made a
condition for recognition of educational institutions. The Court made two
points in this regard. Firstly, it held that Article 19(1)(g) would only
protect education institutions that were run primarily for charitable, and not
profitable, purposes. Secondly, it reaffirmed that rights under Article 19 of
the constitution, including the right to engage in trades, occupations or
business, were subject to reasonable restriction. In this case, the provisions
amounted to a reasonable restriction because the unenforceable ‘Directive
Principles of State Policy’ in the Indian constitution contained similar
provisions for education. The Court held that the directive principles of state
policy would automatically constitute reasonable restrictions on fundamental
rights.

3.The Court held, in the majority
and minority opinion, that unaided minority educational institutions cannot be
compelled to reserve 25% of their seats for disadvantaged children. The
establishment and administration of minority education institutions is a
constitutional right under Article 30 of the Indian Constitution. The Court
held that this right is a special right afforded to minorities and brooks no
restrictions. Insofar as a minority institution is aided by the state, however,
it can be compelled to reserve 25% of its seats for disadvantaged children.

III.Adjudication
Method: Reference to constitutional provisions, previous
decisions and jurisprudence of the Supreme Court of India, legislative history
of the Right to Education Act.

IV.Reference
to other constitutional courts: Not by the majority. The
minority opinion makes reference to decisions to constitutional courts in South
Africa, United States of America, Canada and Venezuela.

V.Reference
to international law: Not by the majority. The minority
opinion makes reference to, but does not rely upon, the U.N. Convention
onEconomic, Social
and Cultural Rights
1966 (ICESCR), International
Covenant on Civil
and Political Rights 1966
(ICCPR), Universal Declaration
of Human Rights
1948 (UDHR), and the United Nations
Convention on Rights
of the Child 1989.

VI.Relation
with former jurisprudence/Innovative elements: The method
of adjudication is not substantially different, however, the Supreme Court has,
for the first time, cast a positive obligation on private, non-state actors to secure
the socio-economic rights of citizens. Previous decisions of the Supreme Court applied
restrictions against discrimination upon private actors. The right to
education, therefore, is justiciable against the state as well as against
non-state actors.

Bibliography:

Key
Words: right to education, horizontal application of
rights, private and non-state actors

Related social rights: Right to work, right to
safe and healthy working conditions, right of women to being guaranteed
conditions of work not inferior to those enjoyed by men, right to gain a living
by work freely chosen

Constitutional provisions: Articles 14, 15 and
19(1)(g) of the Constitution of India

Subject: A law that restricts employment of persons must discriminate,
if at all, on a rational principle. If not, it is liable to be struck down, as
the Constitution prohibits irrational discrimination, and further, permits
autonomy in selecting the occupation of one’s choice.

Summary of the decision:

I.Facts:

Section 30 of the Punjab Excise Act, 1914 prohibits
the employment of any man below the age of 25 years, or any woman, from working
in any part of such premises in which liquor or an intoxicating drug is
consumed. The respondent, Hotel Association of India, has members which carry
on business in hotels, including the service of alcohol in bars, restaurants
and as room service. The respondent had approached the High Court of Delhi, to challenge
the constitutional validity of Section 30 of the Punjab Excise Act, 1914, on
the grounds that it violated the right to equality (Article 14), the
prohibition of discrimination against women (Article 15) and the right to
practice any profession, trade or occupation (Article 19(1)(g)). The High Court
of Delhi struck down Section 30 as unconstitutional. Against this decision, the
Petitioners appealed to the Supreme Court.

The
Supreme Court held that the High Court had decided the matter correctly and
dismissed the appeal. Section 30 of the Punjab Excise Act, 1914 was found to
violate the right to equality and the right ‘to be considered for employment’.

II.Basic
Considerations:

1.The Supreme Court held that the
right to employment “may not” be a fundamental right; however, the right to be considered for employment was protected
under Article 14 of the Indian Constitution, which contains prohibitions
against discrimination. The Supreme Court went on hold that the restrictions in
Section 30 of the Punjab Excise Act, 1914 were unconstitutional, firstly, as they discriminated against
women, and secondly, as all citizens
had the right to be considered for the employment of their choice.

2.The Supreme Court observed that
the Punjab Excise Act, 1914 was a pre-constitutional law, and had been enacted
when the concept of equality amongst men and women was “unknown”. As the
Constitution is now in force, any law which purports to discriminate on
protective grounds should be put to strict scrutiny on two bases: firstly, that the legislative
interference with equality should be justified in principle, and secondly, that the interference should
be proportionate in measure. In this case, the Supreme Court noted that the Act
could not be justified on the basis of the principle of parens patriae, nor on the basis of public morality as there was no
general prohibition against alcohol. Further, the means of restriction were not
proportionate, it was the responsibility of the state to secure the security
and safety of people in such employment, and not, by prohibiting, to avoid its
responsibilities.

3.The Supreme Court did not
explicitly address the arguments raised on the basis of freedom of occupation,
trade or profession; however it was observed that subject to constitutional,
statutory and social interdicts, every citizen had the right to live life on
their own terms, and inasmuch, to choose their professions. This argument was
grounded in the right to privacy. The Supreme Court observed that rights of
privacy prescribed a measure of autonomy to all citizens in choosing their
professions. However, the Court observed, “it is a reasonable proposition that
the measures to safeguard such a guarantee of autonomy should not be so strong
that the essence of the guarantee is lost. State protection must not translate
into censorship.”

III.Adjudication
Method: Reference to constitutional provisions, previous
decisions and jurisprudence of the Supreme Court of India, academic writing, legislative
history and comparative law.

IV.Reference
to other constitutional courts: The Supreme Court referred
to decisions of constitutional courts in South Africa, courts in the United
States of America, and the European Court of Human Rights.

V.Reference
to international law: Without referring to international
law itself, the Supreme Court took ‘notice’ of a number of previous Supreme
Court decisions which referred to treaties prohibiting discrimination against
women.

VI.Relation
with former jurisprudence/Innovative elements: The
Supreme Court explicitly recognised, for the first time, that citizens have
autonomy in choosing their professions subject to constitutional, statutory and
social interdicts. However the scope of such social interdicts was not
clarified. Rather than recognise this as part of the right to work, the Supreme
Court chose to couch it in terms of a negative prohibition against
discrimination. The utilisation of anti-discrimination provisions to protect
socio-economic rights is not new to the jurisprudence of the Supreme Court;
however, the recognition of personal autonomy in choice of employment in this
context is an innovation.

Bibliography:

Key
Words: right to work, right to equal treatment at the
workplace, freedom to choose employment, parens patriae,

The Consumer Education and Research Centre, a non-profit organisation,
filed a public interest petition in the Supreme Court of India in 1986, drawing
attention to the health hazards faced by workers in the asbestos industry. The
Supreme Court, after an exhaustive investigation into the effects of asbestos on
human health and the environment, held that the right to health and medical aid
to protect health was constitutionally protected under the general right to
life in Article 21. It was held that it is the obligation of an employer to
secure the health of its workers, both, during service and after. In the
specific instance of the asbestos industry, the Supreme Court adopted, suo motu, the ILO rules on “"All
Safety in the Use of Asbestos” and directed all states and industries to comply
with them.

The Supreme Court directed all industries and employers to pay
liquidated damages to any workman suffering from health hazards due to working
with asbestos. It further directed all these industries and employers to (i)
maintain and keep health records of every worker for a minimum period of 40
years from employment, or 15 years after retirement, (ii) to utilise a
‘membrane filter’ test to detect asbestos fibre, (iii) to insure every workman,
regardless of whether the Employees’ State Insurance Liability Act 1948 applied
to them. The Supreme Court also directed the Central and State Governments to
review the standards of permissible exposure to asbestos fibre.

Basic Considerations

1)After a detailed examination of
the ill-effects of asbestos on health and the environment, the Supreme Court
held that “right to health, medical aid, to protect the health and vigour of a worker while in
service or post-retirement, is a fundamental right under Article 21, read with
Articles 39(e), 41, 43, 48-A.” The Supreme Court then noted that the
Constitution enjoined the state to provide “social justice,” and accordingly it
was the duty of the state to provide healthcare. The denial of healthcare, it
was observed, would amount to a denial of the right to life under Article 21,
and consequently, the right to health was translated from a duty upon the state
to an enforceable right for the workers. The Court upheld this right to
healthcare even after retirement, noting that existing laws, such as the
Workmen’s Compensation Act, 1923 and the Employees State Insurance Act, 1948,
only protected workers’ right to healthcare during their employment. The
Supreme Court observed, “Continued treatment, while in service or after
retirement is a moral, legal and constitutional concomitant duty of the employer
and the State.”

2)In evaluating the applicable
national standards in regulation of exposure to asbestos, the Supreme Court
observed that India had ratified the Asbestos Convention, 1986 in Convention 12
of the International Labour Conference. It also observed that while certain
legislative standards had been prescribed domestically, these had not been
implemented properly. Consequently the Supreme Court directed that the ILO
rules prescribing ‘Safety in the use of Asbestos’ would be binding on all industries.

3)The Supreme Court, applying
principles of compensation evolved in cases relating to wrongful imprisonment
and custodial death, held that it was settled law that a claim for compensation
is a remedy available when fundamental rights are infringed by the state or by
non-state actors. The Court briefly mentioned, but did not discuss, that such
compensation would also be payable on “the principles of tortious liability”.
The Supreme Court accordingly directed the industries and factories which dealt
in asbestos to pay liquidated damages to their workmen, in compensation for
asbestos-related illnesses caused by health hazards at the workplace.

II.Adjudication
Method: Reference to constitutional provisions, previous
decisions and jurisprudence of the Supreme Court of India, international
treaties, treatises on labour law and health, and application of the principle
of ‘social justice’.

III.Reference
to other constitutional courts: No.

IV.Reference
to international law: Refers to the ILO Asbestos
Convention, 1986 and the ILO Rules regarding safety in the use of asbestos, and
the Universal Declaration of Human Rights.

V.Relation
with former jurisprudence/Innovative elements: The
Supreme Court f India has, previously, exercised wide powers to issue
directions to the state and central governments on the implementation of
various welfare and policy measures. The extensive directions in this case are
in keeping with former jurisprudence; however, the application of ILO rules
which have not been adopted in legislation is unusual. Additionally, compensation
as a remedy for breach of fundamental rights was previously applied only in
cases of infringement of civil liberties (such as wrongful imprisonment, or
custodial violence). The award of compensation in this case, further, is
despite the existence of laws relating to compensation for workplace-related
health problems, which the Court found to be inadequate. Further, the
imposition of the obligation to pay damages for infringement of fundamental
rights was extended beyond the state to private actors as well.

Bibliography:

Key
Words: right to healthcare, right to safety at the
workplace, labour rights

Paschim Banga Khet Mazdoor Samity and Others v. State of West Bengal and Others

Country/Court:
India / Supreme Court of India

Year of Judgment/Nr of Decision: 1996 / (1996)
4 S.C.C. 37

Related
social rights: Right to healthcare, right to emergency
medical treatment

Constitutional
provisions: Article 21 of the Constitution of India

Subject:The right to health and immediate medical assistance
at government hospitals are enforceable rights, and the state is under an
obligation to ensure that adequate health care facilities are available to all,
failing which it is liable to pay compensation.

Summary of the decision:

I.Facts:

Hakim Seikh, an agricultural labourer, fell off a train in the state of
West Bengal, suffering serious injuries to the head as a consequence. He was
taken, in succession, to seven government-operated hospitals, all of which
refused to admit him for treatment on the grounds of unavailability of beds or
facilities. He was ultimately admitted to a privately-run hospital, where he
incurred expenses for medical treatment. Along with the Paschim Bangal Khet Mazdoor Samity (the West Bengal Agricultural
Labourers’ Association) he filed a writ petition claiming relief on the grounds
that non-availability of facilities for treatment of serious injuries at
government hospitals amounted to a denial of the right to life under Article 21
of the Indian Constitution. During the course of the petition, the government
of the state of West Bengal constituted a committee to look into the incident
and to suggest remedial measures to prevent such incidents. The Supreme Court
took on record the report of this committee, and framed guidelines for all

II.Basic
Considerations

1.The Supreme Court observed that as
a welfare state, the Government of India and of the states of India were duty
bound to provide medical facilities to the people. The failure of a government
hospital to provide timely medical treatment of a person in need would amount
to a violation of the right to life under Article 21 of the Indian
Constitution. The denial of such rights, it was held, would entitle the
petitioner, Hakim Seikh, to compensation, for violation of his rights. The
Supreme Court fixed the amount of compensation at Rs. 25,000/- (the costs
incurred were claimed to be Rs. 17,000/-, however there was no discussion of
the calculation of amount of compensation).

2.The Supreme Court took on record
the report of the state investigative committee, and noted that some of these
recommendations had since been adopted by the state government of West Bengal.
The Supreme Court also heard submissions from intervenors on the need to
provide emergency medical. Based on these, the Supreme Court issued further
directions to the state government of West Bengal. These directions included
orders to ensure availability of adequate facilities at all government primary
health care centres, to set up a centralised communication network to ensure
that patients can be sent to centres where beds are available, arrangements for
ambulance services, etc.

3.The Supreme Court observed, that
financial resources would be required for implementing the directions in this
order. However, it noted that “it cannot be ignored that it is the
constitutional obligation of the state to provide adequate medical services to
the people. Whatever is necessary for this purpose has to be done.” Applying
previous decisions on the mandatory provision of free legal aid, it held that
constitutional obligations cannot be avoided on the grounds of financial
constraints.

III.Adjudication
Method: Reference to constitutional provisions, previous
decisions and jurisprudence of the Supreme Court of India.

IV.Reference
to other constitutional courts: No.

V.Reference
to international law: No.

VI.Relation
with former jurisprudence/Innovative elements: The right
to health care, and emergency medical services has been previously recognised
by the Supreme Court as a part of the right to life under Article 21. However,
the Supreme Court in this decision cast a positive obligation upon the state to
ensure that the facilities provided were adequate, and that denial of adequate
services would entitle a petitioner to compensation from the state. The framing
of extensive guidelines and policy is again, common in the jurisprudence of the
Supreme Court. However, it is by no means an established position that the
state’s financial constraints are not grounds for denial of socio-economic
rights, as other decisions (notably, State of Karnataka v. Umadevi (3), (2006)
4 SCC 1) have held that certain rights (such as the right to housing) may not
be implemented on the grounds of the limited financial resources of the state.

Subject:The right to food is a fundamental right, and can be
judicially implemented.

Summary
of the decision:

I.Facts:

In 2001, a non-profit organisation, the People’s Union for Civil Liberties,
filed a writ petition to the Supreme Court, against the Union of India, six
state governments and the Food Corporation of India, a public sector
corporation. This petition was initially filed seeking redress against
inadequate relief from the governments during a period of drought. Relying on
Article 21 of the Indian Constitution, the petitioners argued that the right to
food was a justiciable human right, drawing it as a necessary corollary to the
right to life. The petition initially sought judicial intervention to firstly, provide immediate open-ended
employment in drought-affected villages, secondly,
to provide unconditional support to persons unable to work, thirdly, to raise the public
distribution system’s food entitlements per family, and fourthly, to provide subsidised food grains to all families. It was
subsequently expanded, through interim applications and also by the Court on
its own volition, to address failures of the public distribution system in
India, various food distribution and famine relief schemes, and employment
schemes. The Supreme Court thus far has passed approximately a hundred interim
orders in this case, ordering a number of reliefs, constituting review
committees, and monitoring implementation of its orders, itself. All the Indian
states and union territories have now been impleaded as respondents. Commonly
known as the “Right to Food case”, this matter is still ongoing at the Supreme
Court.

II.Basic
Considerations

1.The Supreme Court, has through a
series of orders, ordered the framing and implementation of various relief
schemes for people below the established “poverty line” as well as those above
it. These schemes include a national scheme to provide a mid-day meal to all
children in government schools, a targeted public distribution scheme, a
special scheme aimed at destitute households. In addition, other schemes not
directly related to the public distribution of food have been implemented by
the Supreme Court through interim orders. These include a maternity benefit
scheme, a scheme to establish and monitor day care centres for children in
rural areas, and an old age pension scheme.

2.The Supreme Court has taken upon
itself the responsibility of monitoring implementation of the abovementioned
schemes. For instance, by an order dated November 28, 2001 it directed the
state and central governments to identify beneficiaries of the schemes
mentioned above by a fixed date. The Supreme Court uses for such monitoring the
device of a “continuing mandamus”, or a writ issued to the Central Government,
continuing at the discretion of the Supreme Court, to do or refrain from doing
certain acts. The Supreme Court has subsequently delegated the task of
monitoring implementation to judicially appointed commissioners. By an order
dated October 29, 2002, the work of these commissioners is funded by the Union
of India.

3.In accepting the right to food as
concomitant to the right to life, the Supreme Court has further identified the
responsible authority for implementing the right to food. In an order dated
October 29, 2002, for instance, it held that “It is the duty of each
States/Union Territories to prevent deaths due to starvation or malnutrition.
If the Commissioner reports and it is established to the satisfaction of the
Court that starvation death has taken place, the Court may be justified in
presuming that its orders have not been implemented and the Chief
Secretaries/Administrators of the States/ Union Territories may be held
responsible for the same.” By an order dated April 27, 2004, the state has been
restrained from discontinuing any of these schemes without the Supreme Court’s
permission.

III.Adjudication
Method: Thus far, interim orders have been monitored for
implementation by direct response to the Court, or through the appointment of judicial
commissioners to oversee implementation.

IV.Reference
to other constitutional courts: No

V.Reference
to international law: No

VI.Relation
with former jurisprudence/Innovative elements: The
Supreme Court has previously utilised the concept of a ‘continuing mandamus’ to
monitor implementation of its orders, in cases relating to environmental
destruction and bonded labour. However, the mandamus in the Right to Food case
appears to be one of the longest, stretching over a decade. The Supreme Court
has accorded to itself the power of not only directing, but also monitoring the
implementation of various government schemes. While this is in accordance with
the jurisprudence of the Supreme Court, it also indicates a significant
widening of the Supreme Court’s reach, into the governance of the state.

The conversion of governmental schemes into legal
entitlements at this scale is unprecedented, as previous decisions have focused
only directed state and union governments to form appropriate schemes. The
Supreme Court here not only directs actual implementation of existing schemes,
but takes on the power to modify these schemes, and monitor actual
implementation. The Supreme Court’s orders have extended to directions
regarding dissemination of information, computerisation of records, and
identification of responsible government officials. The utilisation of wide
powers to enforce fundamental rights has allowed the Supreme Court to innovate
significantly in the implementation of socio-economic rights; for instance, it
has instituted proceedings of contempt against officials for failure to
implement some of these interim orders. Most of all, the implication of the
Right to Food orders has been to demonstrate that the Supreme Court has the
power to issue directions which have direct financial and budgetary
implications on the state, and to further enforce such directions.

Country/Court: Council of Europe, European Committee of Social Rights (ECSR).

Year of Judgment/Nr of Decision:2007, no
33/2006.

Related social rights: Right to housing. Right to protection against poverty and social exclusion.

Constitutional provisions: Articles 31 §2 and 3 and 30 of the European Social
Charter.

Subject:According to the ECSR the States should establish
procedures in order to limit arbitrary evictions, to supply affordable housing
and to provide a comprehensive access to social rights especially where
vulnerable groups are concerned.

Summary of the Decision:

A. A collective
complaint was lodged by the international NGO ATD Quart Monde against France.

1. The provision
of Article 31 § 2 requires States to establish procedures to limit arbitrary
evictions and provide guarantees for housing deportees.

2. According to
Article 31 § 3, states should encourage the construction of housing and an
adequate supply of affordable housing.

3. According to
article 30, States must adopt a comprehensive and coordinated to promote
effective access to social rights, in order to target, if necessary, the most
vulnerable groups and allocate sufficient financial resources.

B. After legal
and sociological examination of the case, the ECSR concluded that the situation
in France concerning all aspects mentioned in Articles 31 § 2 and 3 and 30
constitutes a violation of these provisions. In addition, the ECSR considered
that the situation is also a violation of the particular Article 30 in
conjunction with Article E of the Revised Charter, which prohibits
discrimination.

Adjudication method: Appreciation not only of the national provisions regarding their legal
compliance with the European Social Charter, as well as of the existing legal practice,
but also a sociological examination of the situation. Innovative judicial
approaches, specifically as far as judgments regarding social rights are
concerned.

Reference to other constitutional courts: No.

Reference to International Law: General Observations nos 4 and 7 of the
United Nations Committee of the Convention concerning Economic, Social and
Cultural Rights.

Article 3 § 3
and 5 of the EU Treaty, (aiming to fight against social exclusion and the
eradication of poverty), Article 208 of the Treaty of Functioning of the EU
(policy objective of development cooperation: the reduction of poverty).

European
Convention of Human Rights, inspiration, given the objective of indivisible
human rights to preserve the dignity of the human being.

Bibliography (general): Lenya Samuel, Fundamental Social Rights: Case Law of the European
Social Charter, Council of Europe Publishing, 2002.

Key words: Right to housing, poverty, social exclusion, prevention of
discrimination.

Commentator/contact details: Nikitas Aliprantis.

IACL Project –Social Rights, Library of Social Rights

M. C. Mehta v. State of Tamil Nadu and Others

Country/Court: India/Supreme Court of India.

Year of Judgment/Nr of Decision:2006 / (2006) 6 S.C.C. 756

Related social rights: Prohibition
against child labour, right to work,

Constitutional provisions: Articles 24,
39(e), 41, 45 and 47 of the Indian Constitution.

Subject: The prohibition of child labour in industries involving
hazardous work, and compensation and alternative employment for adult family
members to be provided.

Summary of the Decision:

I. Facts of the case

M.C. Mehta, a lawyer,
filed a petition against the violation of fundamental rights of children
employed in the manufacture of match sticks and fireworks, in Sivakasi, Tamil
Nadu. The Supreme Court admitted the petition and further took notice, on its
own motion, of news reports of accidental death of workers at Sivakasi. The
Court directed the constitution of a commission of inquiry to examine these
accidental deaths. The Supreme Court reviewed this report, as well as
submissions from the state of Tamil Nadu. It further took note of various
legislative and constitutional prohibitions on child labour, including the
Child Labour (Prohibition and Regulation) Act, 1986 (61 of 1986).

The Supreme Court
then made the following directions: firstly,
that all employers who contravened the provisions of the Child Labour
(Prohibition and Regulation) Act, 1986 be directed to pay compensation of Rs.
20,000 for each child employed in contravention of the law; secondly, that this compensation be
deposited into a fund to be established for rehabilitation of child labourers, thirdly, that the state governments
provide alternative employment to an adult member of the family of such child labourers, and in
the alternative, deposit money into the fund for each such child formerly
employed. Finally, the Supreme Court directed all states in India to conduct a
survey of child labour in identified ‘priority’ industries and follow the above
compensation model for all children employed in hazardous employment.

II. The basic
considerations of the case

1.The Supreme Court
first sought to examine the scope of the prohibition on child labour in India.
It noted that Article 24 of the Constitution contains a prohibition on any child below the age of
fourteen years working in in “any factory or mine or engaged in any other
hazardous employment”. It further noted that the Child Labour (Prohibition and
Regulation) Act, 1986 specified certain hazardous industries and employments in
which child labour was to be disallowed. The Supreme Court noted that while
these and other legislative restrictions on child labour existed, they were,
for the most part, not being implemented. Consequently, the Supreme Court held
that it “thought it fit to travel beyond the confines of Sivakasi to which
place this petition initially related..” and “tackle the problem of child
labour, solution of which is necessary to build a better India.” Consequently
the Supreme Court expanded the scope of this petition to cover all child labour
in India.

2.The Supreme Court
noted that the prohibition in Article 24 of the Constitution of India should be
read with Articles 41, 45, 47 and 39(e) of the Constitution. These latter
provisions provide for non-enforceable directive principles of state policy to
provide the right to work and public assistance, to provide free and compulsory
education to children, to raise the elvel of nutrition, and to protect the
health of workers. Although these provisions are not judicially enforceable,
the Supreme Court noted that it was the duty of all organs of the state,
including the judiciary, to apply them when deciding matters of public
importance.

3.The Supreme Court
then noted that India had, by depositing an instrument of accession to the
Convention on the Rights of the Child in 1992, undertaken an international
obligation to progressively implement this convention. It further recognised
measure undertaken b the International Labour Organisation to confirm that
India has a commitment to protect children from economic exploitation, under
Article 32 of the Convention on the Rights of the Child.

4.While surveying the
provisions of the Child Labour (Prohibition and Regulation) Act, the Supreme
Court noted that the Act provides, that if a person is convicted for employing
child labour in contravention of the Act, such person can be punished with
imprisonment for one year, or a fine of upto
Rs. 20,000/-. Despite of this legal framework, the Supreme Court observed
that the law was not being implemented well because of loopholes in the
definitions of hazardous industries. It then noted that in the absence of
alternative income, which was, according to the Court, a root cause of child
labour, the problem could not be resolved. Consequently it passed the
directions above, in “fulfilment of the legislative intendment behind the
enactment of Child Labour (Prohibition and Regulation) Act, 1986.” It also
observed, with respect to its directions on alternative employment, that while
a strong case to recognise the right to work existed, it could not be done on
because of economic considerations and state capacity to implement such a
right.

Adjudication method: Reference to
international obligations, statutory provisions, and constitutional intent, constitution
of a commission of inquiry into the facts.

Reference to other constitutional courts: No.

Reference to International Law: Yes, the International Convention on the Rights of the

Child and various
guidelines from the International Labour Organisation

Relation with former jurisprudence/Innovative elements: The decision in MC Mehta v. Tamil Nadu is interesting, as it moves
beyond specific legislative provisions in the Child Labour (Prohibition and
Regulation Act) 1986, to implement the constitutional prohibition against child
labour. However, the Supreme Court does not stop at mere prohibition, but
further directs compensatory measures which are aimed at rehabilitating and preventing child labour in the future.
In doing so, certain ambiguities in the legal prohibitions of child labour are
borne. For instance, the Supreme Court’s directions on the payment of compensation of Rs. 20,000 for every case of
transgressing the prohibition on child labour has lead to confusion, as the Act
itself provides for a maximumpenalty of Rs. 20,000 for such
transgression. In several subsequent decisions, lower courts have implemented
this compensation rule in other cases of child labour, on the grounds that they
are bound by law laid down by the Supreme Court. Procedurally, again, this has
lead to confusion, as the Act prescribes that penalty should be imposed following
conviction by a court, while the Supreme Court decision empowers Inspectors
under the Act to collect the compensation. While this decision reinforces the
prohibition against child labour, it has caused a certain amount of uncertainty
about the implementation of this prohibition against child labour.